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 As the Distance Education and Training Council has been reporting during the summer, a Notice of Proposed Rulemaking (NPRM) on the HEOA Program Integrity issues were published for public comment on June 18th, with a cutoff date for all comments of August 2nd.
The proposed rules will implement that part of the Higher Education Opportunity Act (HEOA) of 2008 addressing what are called Program Integrity Issues, e.g., credit hour definition, misrepresentation, state licensure of institutions, ability to benefit testing, etc.
One of the more controversial proposals in the NPRM was a novel requirement for states to "authorize" educational institutions "operating" in their state. The term operating was not defined, so it could denote about anything to the reader, from having a student in a state to having an exam proctor. The proposal has generated a tsunami of protest from the higher education community, with dozens of commenters opposed to this rule. The objections—and there are many— to the rule about state authorization can be characterized by these excerpted comments from a letter posted by a large ad hoc coalition of higher education groups, including accrediting associations like the DETC:
The total potential impact of the proposal is difficult to estimate, due to the ambiguities and contradictions in the text and accompanying explanatory statement. We are troubled by the Department’s admission that it did not examine the impact of this proposal before it was put forward. In fact, the full effect of the proposed changes is still not known. What is clear is that attempts to implement the proposal would be chaotic as each state brings its own interpretation of the regulation to the table.
In addition to the lack of clarity about the proposal and its impact, we believe it represents an inappropriate intrusion by the federal government into state responsibilities and prerogatives. For example, many states have decided that a determination by an accrediting body may serve as the basis for state authorization or for follow-up monitoring after the state has granted authorization. The federal government should not second-guess states’ decisions in this regard.
Obviously, the proposal on state authorization would be a nightmare for distance study schools, as it opens up a Pandora’s Box for all online and distance institutions. It could lead to an institution being forced to get authorized by 50 different states, even though they have physical presence in one state where they do business and are domiciled. The proposal runs contrary to a century of interstate commerce judicial rulings and puts states in a straightjacket of inflexibility, something they did not request the federal government do on their behalf.
DETC has strenuously objected to the proposal in its comments to the Department of Education (read a PDF of DETC's letter here), on the grounds the proposed regulations unnecessarily intrude on each state's prerogative to determine its own laws and regulations relative to the authorization of higher education institutions, and the proposed regulations have the capacity to confuse and burden the states and institutions by not making it clear whether a state may be able to continue to rely on the authorization of another state for its own purposes.
Final regulations will be published by November 1, 2010.
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