SARA: DEPARTMENT OF EDUCATION NEGOTIATED RULEMAKING UPDATE
June 22, 2022 Update
On the afternoon of June 21, 2022, the Office of Information and Regulatory Affairs within the Office of Management and Budget posted “The 2022 Spring Agenda," which provided an update on where all of the regulatory agencies are in the development of rules related to the agency. As noted in the Agency Rule List for the Department of Education, the Administration stated that several of the 2021-2022 Federal Negotiated Rulemaking issues will not be completed this year as originally anticipated. This includes Certification Procedures, which is where the language potentially impacting the efficacy of SARA exists. According to this post, the posting date for public comment will not be until April 2023. This means the earliest this rule could be applicable is July 2024. This news does not mean that SARA will not ultimately be impacted, but rather that any potential impact is being delayed.
Since March 2022, NC-SARA has shared with the Department our research and analysis about the potential impact of the language that was discussed during Negotiated Rulemaking, and we have met with Undersecretary Kvaal and staff three times to discuss our concerns. We are hopeful that there continues to be the opportunity to work together on a common ground approach as we share with the Department the commitment to strong postsecondary student consumer protections.
NC-SARA will continue to monitor the situation as it evolves, and we are also preparing for another potential Call to Action next spring. We will keep our website updated, so please stay tuned, and please be on the ready; we may very well seek your help again in protecting the gains we’ve all made on behalf of students with access to quality interstate distance education at the more than 2,300 institutions that participate in SARA.
More detailed information about this situation is shared below.
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?
- 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.
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 firstname.lastname@example.org