SARA: NEGOTIATED RULEMAKING UPDATE
April 4, 2022 Update
What Is the Concern?
During the final week of the Department of Education’s Negotiated Rulemaking process for 2022 (March 14-18, 2022), Issue Paper #6 (Certification Procedures) was discussed that includes proposed language that could potentially directly impact and drastically limit the application of SARA.
- See March 8, 2022 Issue Paper 6: Certification Procedures – Session 3 regarding § 668.14 Program Participation Agreement, Subsection (32)(iii) (see page 7)
The Department needed to have unanimous agreement among the negotiators to make any proposed changes final. The committee did not come to consensus on the proposed language in Issue Paper #6. At this point, the next version will be drafted by the Department, and that may still include this language.
What Is the Proposed Language?
The proposed language in Subsection (32)(iii) is as follows:
(iii) Complies with all State consumer protection laws, including both generally applicable State laws and those specific to educational institutions, except where State requirements for obtaining authorization are inapplicable pursuant to a State authorization reciprocity agreement.
The specific language “for obtaining authorization,” as discussed by the negotiators, would mean that an institution could gain initial approval to participate and pay a single fee (this would be the only part of reciprocity remaining), but after that, the other benefits of reciprocity would end. The consistent set of enhanced student consumer protections afforded by SARA – arguably the most important part of reciprocity through SARA – could potentially go away.
In a nutshell, this means that the gains of SARA could be nullified, and we could move backwards to the patchwork of state authorization distance education regulations that existed before SARA.
Where Did This Concern Come From?
Some of the negotiators in the Negotiated Rulemaking process expressed concern about their perceptions of SARA’s limits on education consumer protection. Their memo to their fellow committee members included language, which was then added by the Department, to ensure that SARA would no longer provide a common set of higher consumer protections for all SARA member states and would instead require all institutions to adhere to the differing consumer protections of every individual state.
At this point, there is a lack of evidence to support the concern that institutions would relocate to states with lower levels of student consumer protection. Furthermore, nearly all SARA member states require some combination of outcomes reporting, onsite visits, refund policies, surety bonds, student tuition recovery funds, closure requirements.
Some are interpreting this new potential federal regulatory language to mean that SARA’s reciprocity would not substantially change. SARA leaders are seeking clarification from the U.S. Department of Education to learn specifically what the intent and perceived results of this language would be.
What is NC-SARA Doing?
Between now and summer 2022, NC-SARA is:
- Closely monitoring the emerging situation with the Department through convenings with the many supportive stakeholder groups and individuals, including the regional compacts, multiple higher education organizations, and policy organizations.
- Developing various scenarios and response strategies in partnership with these groups to educate and coalesce an approach should the language move forward.
- Preparing and extending outreach, educational activities, and resources in collaboration with these groups.
What Can You Do?
Stay tuned! We will continue to post updates to this page as we know more.
- In Summer 2022: Should this proposed language move forward to Notice of Proposed Rulemaking (NPRM) in summer 2022, NC-SARA will alert you to provide your input during the public comment period, which will be open for 30 days. This public comment period will be announced in the Federal Register as well.
Timeline
- If final regulations are released by November 1, 2022, they will become effective July 1, 2023.
- If final regulations are released after November 1, 2022, but by November 1, 2023, they will become effective July 1, 2024.
ADDITIONAL RESOURCES
Source Documents and Department of Education Resources About This Issue
- Issue Paper 6: Certification Procedures – Session 3 regarding § 668.14 Program Participation Agreement, Subsection (32)(iii) (see page 7)
- Certification Procedure Memo About State Consumer Protection Laws: Memo of March 16, 2022, presented to the Negotiated Rulemaking Committee that articulates the rationale for this proposed language.
About SARA and NC-SARA
- SARA: Promoting Postsecondary Access and Quality
- SARA: Protecting Students and Demanding Quality
- Institution Participation & Renewal Requirements
- SARA Member State Requirements and Information
- SARA-Participating Institution and State Directory
NC-SARA will continue to update information on this webpage. Need additional assistance or information from NC-SARA? Please email info@nc-sara.org