U.S. Department of Education 2023-2024 Negotiated Rulemaking
February 28, 2024 Update: The U.S. Department of Education (ED) has released an updated version of Issue Paper: State Authorization (v3)
The U.S. Department of Education (ED) has released an updated version of Issue Paper: State Authorization (v3). The Program Integrity and Institutional Quality Committee will consider and discuss the paper during Session 3 of Negotiated Rulemaking, which begins March 4 and concludes March 7.
NC-SARA board members and staff, in collaboration with regional compact staff, have reviewed the paper and have some questions that we hope to have answered in the final week of Negotiated Rulemaking. Here are a few of our concerns:
- Replacing “education-specific laws” with “applicable state laws.” ED dropped the “education-specific laws” language and instead wrote that institutions must comply with “applicable state laws and regulations.”
- Deleted the language on a reciprocity organization board having no vote on policy.
- Reciprocity organization board membership composition. ED kept the board membership requirements with a slight modification to also allow members of licensing bodies.
- 500 students. If an institution has more than 500 students in another state, the institution would have to get separately authorized for that state; SARA would not apply.
Let your voice be heard! We encourage all members of the SARA community to review the issue paper and consider signing up for public comment to share the value of SARA. At the end of each of the first three days of Negotiated Rulemaking Session 3, the committee will reserve 30 minutes for public comment. The U.S. Department of Education website has instructions for requesting time to comment.
February 22, 2024 Update:
NC-SARA’s Response to Program Integrity and Institutional Quality Committee Session 2
The U.S. Department of Education’s (ED) 2024 Program Integrity and Institutional Quality Committee for Negotiated Rulemaking opened Session 2 on February 5 and the session closed on February 8. Related to the work of the committee, the SARA Community continues to:
- Support efforts to improve transparency and collaboration in ways that benefit students.
- Believe that states must lead “an agreement among states” such as SARA.
- Agree that there are important principles to consider in discussions about the appropriate roles and relationships between the federal government and states.
- Dr. Robert Anderson, Chair of the NC-SARA Board, submitted a memo from NC-SARA to be included in Negotiating Rulemaking, Session 3, which will be held March 4 – 7, 2024.
- NC-SARA staff has produced a short document, How SARA Works, to clarify and deepen understanding about how SARA functions and the positive impact it has had on millions of students across the United States.
Education-Specific Laws – Issue 1
As part of Negotiated Rulemaking Session 2, ED provided a revised Issue Paper State Authorization V2. The following is an excerpt from the paper where the term education-specific laws has been included:
600.9 State authorization. (a)(1) An institution described under §§ 600.4, 600.5, and 600.6 is legally authorized by a State if the State:
(i) Ensures the institution complies with any applicable State authorization or licensure requirements, except as described in subsection (3) of this section, and continues to meet a State’s general-purpose or education-specific laws and regulations; and…
While the proposed language is still just that – a proposal – the inclusion of education-specific laws could be ED’s first step toward imposing their desire to have all out-of-state institutions follow each state’s authorization requirements regardless of reciprocity, which would effectively dismantle SARA.
If ED were to go forward with including education-specific laws in the new regulations, the gains afforded to states and institutions when SARA was established would be nullified, and we would move backwards to the patchwork of state authorization distance education regulations that existed before SARA. This would mean:
- Student access to out-of-state distance education opportunities would likely be significantly reduced.
- The uniform set of student consumer protections afforded by SARA would be nullified.
- Each institution would need to monitor and respond to regulations for each individual state in which they enroll students.
- Each institution would lose the cost-savings, reduced administrative burden, and other benefits associated with being a SARA participant.
NC-SARA Board Composition – Issue 2
A second concern for the SARA Community that is also included in the revised Issue Paper State Authorization V2 is the requirement in § 600.9(d) that governing bodies of a reciprocity agreement must consist solely of representatives from state regulatory bodies, enforcement agencies, and attorneys general offices:
600.9 State authorization. (a)(1) An institution described under §§ 600.4, 600.5, and 600.6 is legally authorized by a State if the State:
(d) If an institution is authorized to offer distance education in another State under a State authorization reciprocity agreement, as defined in § 600.2:
(2) If administered by an organization, the governing body of such organization must consist solely of representatives from State regulatory bodies, enforcement agencies, and attorneys general offices.
We believe having a board with diverse membership improves the operation and governance of SARA. Including experts from a variety of backgrounds within the higher education community ensures that the full range of perspectives is considered when matters related to SARA are discussed and counsel is provided to SARA members.
Additionally, the current NC-SARA Board has taken the position to not vote in the future on policies put forth by the SARA Regional Steering Committees through their regional compacts. ED accepted our proposal to formalize this position by including it in regulation. Doing so will make clear the state-driven role in determining policy that impacts reciprocity and should eliminate the need to dictate the specific make-up of any governing body overseeing a state reciprocity agreement.
Other Issues That Could Impact SARA
There are several other issues on the table in the 2023-2024 Negotiated Rulemaking that would also impact SARA. While the negotiators continue to work toward a compromise, we provide here a summary of those issues. For a detailed report and other materials please see ED’s website on negotiated rulemaking:
- Definition of state authorization reciprocity agreement.
- Implementation of a state-led process for policy that could not be overruled by any external entities that administer a state authorization reciprocity agreement.
- Creation of a more robust complaint process for students enrolled in higher education institutions participating in a state authorization reciprocity agreement. That process would include:
- Communicating information about a student’s complaints to the state where the student is located.
- Permitting member states responsible for receiving, and providing a final determination on, a student complaint, to, at the state’s discretion, accept, investigate, and resolve complaints about an institution without the student first going through the institution’s own procedures.
- Requiring that complaints received by states about institutions subject to the state reciprocity agreement be communicated to the organization(s) that administer(s) the agreement. The organization(s) must make information received on complaints public at least annually, including but not limited to the number and type of complaints by institution for all institutions that are subject to the state reciprocity agreement.
- Allowing those complaints alleging criminal offenses or violations of a state’s general-purpose laws, including but not limited to fraud, misrepresentation, and harassment, to be made directly to appropriate state agencies in the institution’s or student’s home state.
- Permitting member states to, at the state’s discretion, accept, investigate, and resolve complaints about an institution that have not yet been submitted to and resolved by the institution.
NC-SARA continues to convene and facilitate discussion among a broad group of stakeholders to analyze the potential impact of the proposals described above on SARA-participating institutions and member states. We will share more information by email, on our Call to Action webpage, and by hosting webinars throughout the year.
- NC-SARA is hosting a webinar on Negotiated Rulemaking, March 21, 2024. Registration is open!
- Let your voice be heard! Sign up to provide public comment during the 2023-2024 Negotiated Rulemaking. At the end of each day of every session, the committee reserves 30 minutes for public comment. To request time to comment, please send the name of the speaker, as well as the name of the organization, if applicable, to email@example.com no later than 12:00 p.m. ET on the day of the meeting.
- Phil Hill and Associates produced a blog claiming the U.S. Department of Education is targeting online education.
- WCET, the national leader in the practice, policy, and advocacy of digital learning in higher education, produces the Frontiers Blog, which includes information about and perspectives on negotiated rulemaking: 1) Major Changes to Distance Ed: Department of Education Rulemaking Week 2 Update; 2) Major Changes to Distance Ed Proposed: Department of Education Back to Rulemaking Table
February 6, 2024 Update: Webinar Information
NC-SARA will be hosting an informational webinar focused on updates related to the U.S. Department of Education negotiated rulemaking.
Date: Thursday, March 21, 2024
Time: 12:00 PM - 1:00 PM (Mountain Time)
Department of Education Negotiated Rulemaking - Spring 2024 Update for the SARA Community
In this webinar, representatives from the State Authorization Reciprocity Agreements (SARA) community will review the implications for SARA-participating institutions as well as SARA member states and territories of the 2021-2022 negotiated rulemaking final regulations published by the U. S. Department of Education in October 2023, with a particular focus on certification procedures related to institutional closure. Presenters will also provide an update on the 2023-2024 negotiated rulemaking, again focusing on topics that may have the greatest impact on SARA.
LINK TO REGISTER
January 29, 2024 Update: NC-SARA Board Chair Submits Proposal Related to Complaint Systems and Governance in State Authorization
NC-SARA Board Chair Dr. Robert Anderson has submitted a proposal to the U.S. Department of Education related to Issue Paper 2: State Authorization addressing complaint systems and governance in state authorization. Dr. Anderson submitted the proposal to negotiators on the Program Integrity and Institutional Quality Committee following Session 1. The committee will meet for Session 2 February 5 – 8, 2024. Dr. Anderson serves as an alternate negotiator on the committee.
January 8, 2024 Update: SARA Concerns Related to Issue Paper 2: State Authorization in 2023-2024 Negotiated Rulemaking
The U.S. Department of Education’s (ED) 2023-2024 negotiated rulemaking process includes six issues. Although many could have implications for distance education, NC-SARA is primarily focused on the topic of state authorization. ED has released initial proposed regulatory language in Issue Paper 2: State Authorization. The proposed language includes two items: the first would require additional transparency around student complaints and the second would limit eligibility for membership on the board overseeing a state authorization reciprocity agreement.
NC-SARA’s high-level takeaways include:
- We are supportive of any efforts to improve transparency and collaboration in ways that benefit students.
- We believe that states must lead “an agreement among states” such as SARA.
- There are important principles to consider in these discussions about the appropriate roles and relationships between the federal government and states.
NC-SARA staff has drafted a summary of the proposed language related to student complaints and board membership; that document includes key points related to SARA as well as a list of our primary concerns about the proposed language.
January 4, 2024 Update: Negotiated Rulemaking 2023-2024: Program Integrity and Institutional Quality Issue Papers Released and Negotiators Selected
The U.S. Department of Education’s (ED) 2023-2024 Program Integrity and Institutional Quality Rulemaking agenda includes issues addressing accreditation, state authorization, and the definition of distance education. The first set of issue papers has been released and negotiators have been selected. Dr. Robert Anderson, President of SHEEO and Chair of the NC-SARA Board, has been selected as an alternate for this session of negotiated rulemaking. More information about the forthcoming session and the full list of negotiators can be found on the U.S. Department of Education website.
NC-SARA will focus its attention on Program Integrity and Institutional Quality Rulemaking proposals that address reciprocity. After our initial review of the state authorization issue paper, first impressions include:
- ED has concerns about who is selected to serve on the NC-SARA Board.
- ED would like to revise the SARA Student Complaint Process by mandating that reciprocity agreements require institutions to have a system to report student complaints to the state in which the student resides.
Please note that the first set of issue papers are considered a starting point for the negotiators. As the negotiating sessions get underway, we will be listening to the negotiations, monitoring any further issue papers that are released, and keeping the SARA community informed.
For more information on how to stay informed and to offer public comment during the negotiated rulemaking session, see below.
Information below from the U.S. Department of Education
Register to Observe:
Members of the public may observe the committee meetings; the committee will meet virtually for three sessions on the following dates:
Session 1: January 8–11, 2024
Session 2: February 5–8, 2024
Session 3: March 4–7, 2024
Session times will be from 10 a.m. to 12 p.m. ET and 1 p.m. to 4 p.m. ET, with a public comment period from approximately 3:30 p.m. to 4 p.m. ET. If you would like to observe the negotiations, please register here.
At the end of each day, the committee will reserve 30 minutes for public comment. To request time to comment, please send the name of the speaker, as well as the name of the organization, if applicable, to firstname.lastname@example.org no later than 12:00 p.m. ET on the day of the meeting. ED will provide information to commenters on how and when to log in to the meeting as a speaker. ED will accommodate as many requests as possible.
Agenda and Issue Papers for Session 1 (January 8-11):
- Session 1 Agenda
- Session 1 Issue Paper Cash Management
- Session 1 Issue Paper State Authorization
- Session 1 Issue Paper Distance Education
- Session 1 Issue Paper R2T4
- Session 1 Issue Paper Accreditation
- Session 1 Accreditation Regulatory Text
December 15, 2023 Update: NC-SARA Nominates Two Individuals to Serve on U.S. Department of Education's 2024 Negotiated Rulemaking Committee
NC-SARA staff worked with the Executive Committee of the NC-SARA Board and the regional compact presidents to nominate two negotiators for the U.S. Department of Education’s 2024 negotiated rulemaking committee, which will prepare proposed regulations for federal programs authorized under Title IV of the Higher Education Act of 1965.
NC-SARA nominated Dr. Eduardo M. Ochoa to represent public four-year institutions and Dr. Robert Anderson to represent state officials, including state higher education executive officers, state authorizing agencies, and state regulators of higher education institutions.
The Negotiated Rulemaking Committee will meet virtually for three sessions on the following dates:
- Session 1: January 8–11, 2024
- Session 2: February 5–8, 2024
- Session 3: March 4–7, 2024
The U.S. Department of Education will provide additional information to those selected to serve as negotiators and will then post the full list of negotiators on the Department website.
December 6, 2023 Update: Announcement of Negotiated Rulemaking 2024
The Office of Postsecondary Education of the United States Department of Education (USDE) has requested nominations from stakeholders for a negotiated rulemaking committee. All negotiating sessions will be virtual, and the public will be permitted to observe the meetings. USDE will reserve 30 minutes each day for public comments. The committee will meet for three sessions on the following dates:
- Session 1: January 8-11, 2024
- Session 2: February 5-8, 2024
- Session 3: March 4-7, 2024
Sessions will run from 10 a.m. to 12 p.m. and 1 p.m. to 4 p.m. Eastern Time, with a public comment period from approximately 3:30 p.m. to 4 p.m., Eastern Time.
The six issues that will be addressed within the 2024 rulemaking process include:
- The Secretary's recognition of accreditation agencies under 34 CFR part 602 and related parts;
- Institution Eligibility under 34 CFR 600.2 and related to state authorization 34 CFR 600.9;
- Distance Education to address clock hour programs and reporting for online students;
- Return to Title IV funds;
- Cash Management;
- Federal TRIO Programs (a subcommittee will also be created).
The call for nominations identifies the constituencies that the USDE intends to include on the rulemaking committee. NC-SARA staff will work with the board officers and regional compact presidents to prepare a letter of nomination for a negotiator. Nominations are due by December 13, 2023. We will share our nomination letter on the NC-SARA website after submitting it to USDE.
- Federal Definition of State Authorization Reciprocity Agreement at 34 CFR 600.2
- NC-SARA Webpage for 2021-2022 Negotiated Rulemaking (Final Language Oct. 2023)
NC-SARA will continue to update information on this webpage. Need additional assistance or information from NC-SARA? Please email email@example.com