Office of Postsecondary Education - U.S. Department of Education

66864 Federal Register / Vol. 75, No. 209 / Friday, October 29, 2010 / Rules and RegulationsWReier-Aviles on DSKGBLS3C1PROD with RULES2process that would lead to continualoversight by a State.Changes: None.Comment: Several commentersexpressed concern regarding thefinancial burden on the States to makechanges in State laws and the amount oftime that would be needed to make thenecessary changes. Commenters fearedthat the States would most likely haveto reduce further State tax subsidiesprovided to public institutions. As aresult, costs will be increased forstudents at public institutions to coverlost revenues and increase costs for thetitle IV, HEA programs. One commenterstated that schools could delay progressof degree completion at State fundeduniversities because they will be forcedto reduce offerings.Discussion: We do not believe that itwould impose an undue financialburden on States to comply with theprovisions in § 600.9. In most instanceswe believe that a State will already becompliant for most institutions in theState or will need to make minimalchanges to come into compliance. Thus,we do not agree with commenters whobelieved that the regulations wouldgenerally impact the funding of publicinstitutions in a State or wouldnecessitate a reduction in the offeringsat public institutions.Changes: None.Exemptions: Accreditation and Years ofOperationComment: Several commenterssupported the existing practice bywhich a State bases an institution’s legalauthorization to offer postsecondaryeducation upon its accreditation by anationally recognized accreditingagency, i.e., an accrediting agencyrecognized by the Secretary. Thecommenters believed that proposed§ 600.9 should be revised or clarified topermit existing practices allowingexemption by accreditation. Anothercommenter indicated that several Stateshave exempted accredited institutionsfrom State oversight unless thoseinstitutions run afoul of theiraccreditors’ requirements. Onecommenter believed that proposed§ 600.9 would require the creation ofunnecessary, duplicative, andunaffordable new bureaucracies, andrecommended that its State shouldcontinue its partial reliance onnationally recognized accreditingagencies. Another commenter believedit appropriate that a State delegate someor all of its licensure function to anationally recognized accreditingagency provided that the State entersinto a written agreement with theaccrediting agency.One commenter stated that theDepartment should eliminate theambiguity about how much a State mayrely on accrediting agencies. Severalcommenters stated that the regulationsare confusing as to which exemptionsare permissible and which are not. Onecommenter believed that theDepartment should make it clear thatalthough a State is not prohibited fromrelying on accrediting agencies forquality assessments, the essential dutiesof State authorization cannot becollapsed into the separate requirementfor accreditation.Some commenters noted that aninstitution’s legal authorization may bebased on a minimum number of yearsthat an institution has been operating.One of the commenters cited aminimum number of years used byStates that ranged as low as 10 years ofoperation while two other commentersnoted that institutions had beenexempted in their State because theyhad been in operation over 100 yearsand were accredited. The commentersbelieved that the Department shouldconsider it acceptable for a State to relyon the number of years an institutionhas been operating.Some commenters did not think thatStates should be allowed to deferauthorization to accrediting agencies.One of these commenters believed thatbasing State authorization onaccreditation was contrary to law. Onecommenter believed that existing lawmakes clear that institutional eligibilityfor title IV, HEA programs is based onthe Triad of accreditation, Stateauthorization, and the Federalrequirements for administrativecapability and financial responsibility.As a result the commenter believed thatthe extent to which States may rely onaccrediting agencies should be clear andlimited. Along the same lines, anothercommenter believed strongly thataccrediting agencies should never beallowed to grant authorization tooperate in a State, and that furtherclarifications about the ways in whichaccrediting agencies may substitute forState agencies is necessary. Onecommenter encouraged the Departmentto study more carefully the role of Stateentities and accreditation agencies.Another commenter believed thatrelying on accrediting agencies to besurrogates for State authorization isinappropriate and should not be the soledeterminant for authorization. Onecommenter stated that accreditationmay not be accepted as a sufficient basisfor granting or continuing authorizationto operate and that the authorizationprocess must be independent of anyaccreditation process or decision.VerDate Mar2010 14:10 Oct 28, 2010 Jkt 223001 PO 00000 Frm 00034 Fmt 4701 Sfmt 4700 E:\FR\FM\29OCR2.SGM 29OCR2One commenter believed thatproposed § 600.9 would undermine therole of accreditation and the publicprivatepartnership and would call forStates to intrude into academic areas.The commenter believed that theproposed regulations would movetoward establishing accreditation as aState actor, a role that is incompatiblewith accreditation’s commitment to selfregulationand peer and professionalreview. Another commenter believedthat the Department should make itclear that although a State is notprohibited from relying on accreditingagencies for quality assessments, theessential duties of State authorizationcannot be collapsed into the separaterequirement for accreditation. If aninstitution’s State and accreditingagency have different standards, onecommenter was concerned regardingwhich entity’s standards would beapplied.Discussion: While we recognize andshare the concerns of some commentersthat States should not be allowed todefer authorization to accreditingagencies, we believe that such a practicewould be permissible so long as it doesnot eliminate State oversight and clearlydistinguishes the responsibilities of theState and accreditor under such anarrangement. We also do not agree thatadditional study is needed of the rolesof State entities and accrediting agenciesas we believe these relationships arewell understood.We believe that accreditation may beused to exempt an institution from otherState approval or licensing requirementsif the entity has been established byname as an educational institutionthrough a charter, statute, constitutionalprovision, or other action issued by anappropriate State entity to operateeducational programs beyond secondaryeducation, including programs leadingto a degree or certificate. For such aneducational institution, a State couldrely on accreditation to exempt theinstitution from further approval orlicensing requirements, but could not doso based upon a preaccredited orcandidacy status.We also agree with the commentersthat States may utilize an institution’syears in operation to exempt it fromState licensure requirements, but only,as with accreditation, for a legal entitythat the State establishes as aneducational institution authorized tooffer postsecondary education.However, we believe that there shouldbe a minimum standard for allowingyears of operation to exempt aninstitution to ensure that this exemptionis not set to a short period of time thatwould not provide a historical basis to