Negotiated Rulemaking 2024: SARA-Participating Institutions Call to Action

TAKE ACTION NOW: Defend Online Learners! 

The U.S. Department of Education (ED) is considering significant changes to the regulations that govern how states oversee institutions that offer distance education programs, with potentially serious ramifications for the diverse students and communities served by these programs throughout the country. 

Although the SARA community shares ED’s concerns about the need for student protections, we do not believe the proposals issued during the negotiated rulemaking process earlier this year are in the best interest of students. Instead, we believe there is a more productive and effective approach that can preserve access to distance education while limiting the burden placed on responsible institutions and keeping students as the primary focus. Concerns about student protections related to distance education are best addressed through the SARA Policy Modification Process. 

We strongly urge SARA-participating institutions to reach out now to ED. The details below include background information and summaries of key issues to support the development of comments to send to federal policymakers on the important issues impacting SARA.

We anticipate ED will release proposed regulations as soon as July 2024. Please send letters/emails on or before June 15, 2024. The time is now, while ED is still drafting the regulations, to let your collective voice be heard!

We are not providing a letter template because, in our experience, individual letters/emails tend to have greater impact with federal policymakers. We encourage you to draw from the bullets provided below and put the relevant points in your own words, adding examples relating to your institution’s students and programs. Perfection in a written statement is not what matters. Acting now and authentically communicating your position and advocating on behalf of all learners is of paramount importance.

Background Information and Key Issues

Why now? ED has begun the process of modifying regulations pertaining to state authorization and may be seeking to issue a proposal for public comment in the coming weeks. Providing input now with ED gives us the best chance to minimize any potential harm to distance education students and programs.

Background. In 2023 ED formed a negotiated rulemaking committee to address state authorization and several other topics impacting the higher education community. At the conclusion of the 2023-2024 Negotiated Rulemaking Session 3 (March 2024), members of the Program Integrity and Institutional Quality Negotiated Rulemaking Committee convened by ED failed to reach consensus on Issue Paper 2: State Authorization (revised during Session 3). There was, in fact, significant opposition to ED’s proposals, including from institutions that operate distance education programs. Because the committee did not reach consensus on the proposed language, ED has the authority to now propose and ultimately approve regulations conceived and written by agency staff even if the language they are proposing is the same as or very similar to the language that generated significant opposition. 

What comes next? Although the proposed regulatory changes will still be subject to public comment, ED is seeking to finalize their proposal in the coming months. The NC-SARA Board has significant concerns about the impact the new regulations – should they be similar to what ED proposed during negotiated rulemaking earlier this year– would have on SARA and state authorization reciprocity. By providing your input now (and again through official public comment), the SARA community has the best chance to minimize any harm to distance education students and programs.

Key issues at stake. 

There is one general principle and three specific areas from the proposal issued by ED during negotiated rulemaking that are of greatest concern for the SARA community.

General principle: States must be key partners in setting policies related to a state authorization reciprocity agreement. State regulators and the responsible SARA-participating institutions are heavily involved with and focused on student protections; and working collaboratively with ED, accreditors, and other key stakeholders is critical. However, the SARA community believes that the broad goals and concerns articulated by ED, proposed during the 2023-2024 Negotiated Rulemaking, can be more effectively addressed through the SARA Policy Modification Process. By working through the structured, collaborative, and highly transparent SARA Policy Modification Process, alternatives could be developed and implemented that meet our shared goal to improve student protections while also limiting burden for low-risk institutions and preserving and enhancing student access to high quality distance education programs. Supporting our low-risk institutions and preserving access to education is crucial if our country is committed to meeting the needs of all students who wish to pursue postsecondary education.

Specific areas of concern

1. “Applicable State Laws” Related to Closure – One component of ED’s recent proposal would require SARA to permit states to enforce their own authorization requirements related to institutional closure, including records retention, teach-out plans, tuition recovery funds, and/or surety bonds. Such a requirement would undermine the benefits of state reciprocity agreements and is unnecessary. Ultimately, if states wish for this to be SARA policy, they can choose to enact it. Alternatively, states could choose to examine existing SARA policies on closure. This proposal from ED would harm institutions because of the following: 

• SARA already allows states to work across borders with SARA-participating institutions to ensure orderly closure, including teach-out opportunities for students. 
• If implemented, the new rule would increase SARA-participating institutions’ administrative burdens and their costs to research closure rules and adhere to each state’s applicable state laws. Some institutions could choose instead to not enroll students from certain states, thus negatively impacting student access. 
• There is no evidence that SARA opens the gate to unchecked fraudulent behavior on the part of institutions offering distance education that would warrant such a proposal.
• Between 2018 and 2023 there were 29 closures among SARA-participating institutions, far fewer than the more than 200 closures in non-SARA degree-granting institutions during this same period. Clearly, SARA ensures that participating institutions are vetted and held to standards that help alleviate closures. 
• If states wanted to enforce state closure laws on out-of-state institutions, they could a) leave SARA or b) vote to expand requirements related to closure through the SARA Policy Modification Process. In fact, several proposals on this topic were submitted in 2023 and were voted down by the states.

2. Limiting SARA: The 500 Rule – This component of ED’s most recent proposal would require institutions to obtain direct authorization – and therefore not have the benefit of reciprocity – from any participating state where the institution enrolled more than 500 students in each of the two most recently completed Title IV award years. This proposal is arbitrary because it identifies a single risk factor (number of students enrolled) as the basis for a risk-based approach. The usage of this factor is unsupported by research or data and the risks purportedly associated with size of student enrollment are not specified. Further, the proposal would:

• Limit the benefits of participation in a reciprocity agreement and significantly increase the administrative burden and cost for states and larger institutions as they would need to apply for authorization on a state-by-state basis. If this rule were implemented, some institutions could choose to limit enrollment in certain states, thus negatively impacting student access.
• Impact nearly 850,000 students if implemented. The Department has not appropriately specified the risks under consideration and considered alternative approaches that could more effectively prevent harm to students. Instead, this proposal could limit student access and penalize institutions with strong track records in effectively serving students. During negotiated rulemaking there was also some discussion of lowering the 500 number to 100, which would further increase the number of institutions and states that would see a significant increase in administrative burden while potentially limiting access to high-quality education for more than one million students.

3. NC-SARA Board Membership – This rule, if implemented, would stipulate that any governing body of state reciprocity agreements must be composed solely of representatives from state regulatory and licensing bodies, state enforcement agencies, and state attorneys general offices.

• This is a concern because NC-SARA is a private 501(c)(3) organization. It is not the federal government’s role to dictate composition of private entities, and because NC-SARA is not a direct link to Title IV, this is overreach by ED.
• Multiple parties came together during the creation of SARA and decided to set up NC-SARA and its board with the structure that is currently in place. The NC-SARA board includes a diverse makeup of higher education experts reflecting varied and diverse backgrounds of relevance who provide a critical knowledge base to deliver on NC-SARA’s mission to assist in implementing SARA. 

Two additional issues in ED’s most recent proposal to be aware of:

Any SARA Member State May Revoke the Authorization of a SARA-Participating Institution for Violating General Purpose Laws – Current SARA policy allows for a SARA-participating institution that violates state laws to be reviewed by its home state with consequences that could affect their participation in SARA nationwide. Although current SARA policy also allows action to be taken by SARA states or territories other than the home state for general purpose law violations this proposal, if enacted, would place SARA policy into federal regulations. 

Complaint Process Requirements – During 2023-2024 Negotiated Rulemaking the Program Integrity and Institutional Quality Committee also discussed student complaints and proposed changes that would make a reciprocity agreement complaint process more robust. If approved, the new regulations would: 

• Require each participating state to implement a process for communicating information about students’ complaints to the organization that administers the reciprocity agreement (NC-SARA) and to the students’ home states.
• Permit member states to – consistent with their own statutes and regulations – accept, investigate, and resolve complaints about an institution that have not been submitted to and received by the institution itself.
• Require an organization that administers a reciprocity agreement to publish student complaint data for the public at least yearly.

NC-SARA has been working with the SARA community to improve the SARA complaint process. In fact, many of ED’s suggestions are either already in place, are in the process of being implemented, or have been submitted as proposals in the 2024 SARA Policy Modification Process cycle and will be reviewed and voted upon later this year.

Next steps for institutions.

As a reminder, we are asking SARA-participating institutions to reach out to ED on or before June 15, 2024, so that as a SARA community we can let our voices be heard while ED is still drafting the regulations, rather than after they are published for public comment. 

We have listed below information for key staff at ED who are working on the proposals described above; please send your email(s) or letter(s) to those individuals.

Miguel Cardona

Secretary of Education

Miguel.Cardona@ed.gov

James Kvaal

Under Secretary of Education

James.kvaal@ed.gov

Ben Miller

Deputy Under Secretary, Office of the Under Secretary

Benjamin.Miller@ed.gov

Antoinette Flores

Deputy Assistant Secretary for Policy, Planning, and Innovation, Office of Postsecondary Education

Antoinette.Flores@ed.gov

Wesley Whistle

Special Advisor, Office of the Under Secretary

Wesley.Whistle@ed.gov

Next steps for NC-SARA.

NC-SARA continues to convene and facilitate discussion among a broad group of stakeholders about the issues ED plans to address in forthcoming proposed regulations. The four regional compacts and NC-SARA have conducted surveys of SARA-participating institutions, state regulators, and state portal entity (SPE) staff on the potential impact of ED’s proposals. We will share more information by email, on our Call to Action webpage, and by hosting webinars throughout the year.

Together we can maintain the integrity of SARA on behalf of students, but we must all act now!