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

Federal Register / Vol. 75, No. 209 / Friday, October 29, 2010 / Rules and Regulations66867WReier-Aviles on DSKGBLS3C1PROD with RULES2institution does have physical locationsto rely on the information the otherStates relied on in granting authority. Inthis case, the commenter recommendedthat the oversight be at least asprotective of students and the public asthose of the State, and the State shouldconsider any relevant information itreceives from other sources. However,the commenter thought the State shouldretain authority to take independentadverse action including revoking theauthority to offer postsecondaryprograms in the State. Anothercommenter expressed concern that theproposed regulations would confuseand burden the States and institutionsbecause they are not clear regardingwhether a State can continue to rely onthe authorization of another State. Thecommenter believed that withoutclarification, an institution that offerseducation to students located in otherStates might be needlessly burdenedwith seeking authorization from each ofthose States. Another commenterexpressed concern that the proposedregulations could potentially require aninstitution offering distance educationcourses in 50 different States to obtainauthorization in each State, whichwould be an administrative burden thatcould result in increased tuition fees forstudents. Another commenter statedthat during the negotiations, theDepartment indicated it was not itsintent to require authorization in everyState. Therefore, the commenter urgedthe Department to include this policyexpressly in the final regulations.Discussion: We agree with thecommenters that further clarification isneeded regarding legal authorizationacross State lines in relation toreciprocity between States and todistance education and correspondencestudy. In making these clarifications, weare in no way preempting any Statelaws, regulations, or other requirementsestablished by any State regardingreciprocal agreements, distanceeducation, or correspondence study.To demonstrate that an institution islegally authorized to operate in anotherState in which it has a physicalpresence or is otherwise subject to Stateapproval or licensure, the institutionmust demonstrate that it is legallyauthorized by the other State inaccordance with § 600.9. We continue tobelieve that we do not need to regulateor specifically authorize reciprocalagreements. If both States provideauthorizations for institutions thatcomply with § 600.9 and they have anagreement to recognize each other’sauthorization, we would consider theinstitution legally authorized in bothStates as long as the institutionprovided appropriate documentation ofauthorization from the home State andof the reciprocal agreement. In addition,the institution must provide thecomplaint contact information under 34CFR 668.43(b) for both States.If an institution is offeringpostsecondary education throughdistance or correspondence education ina State in which it is not physicallylocated, the institution must meet anyState requirements for it to be legallyoffering distance or correspondenceeducation in that State. An institutionmust be able to document upon requestfrom the Department that it has suchState approval.A public institution is considered tocomply with § 600.9 to the extent it isoperating in its home State. If it isoperating in another State, we wouldexpect it to comply with therequirements, if any, the other Stateconsiders applicable or with anyreciprocal agreement between the Statesthat may be applicable.Changes: We have revised § 600.9 toclarify in paragraph (c) that, if aninstitution is offering postsecondaryeducation through distance orcorrespondence education to students ina State in which it is not physicallylocated, the institution must meet anyState requirements for it to be legallyoffering postsecondary distance orcorrespondence education in that State.We are further providing that aninstitution must be able to documentupon request by the Department that ithas the applicable State approval.State InstitutionsComment: Many commentersrequested that public institutions beexempted from the proposedregulations. They were concerned thatrequiring States to reexamine their Stateauthorization for public colleges wouldnot be a good use of resources. Onecommenter requested that theDepartment explicitly state that publicinstitutions are by definition agents ofthe State and thus need no furtherauthorization. One commenter from aState university system believed that theFederal Government should not imposea uniform model with ‘‘one size fits allStates.’’ Another commenter noted thata State may not have legal power overdecisions made by authorities givenunder the State’s constitution foroversight of certain publicpostsecondary institutions. Onecommenter believed that publicinstitutions should be exempt from theproposed requirements for adverseactions and complaint processes.Discussion: As instrumentalities of aState government, State institutions areVerDate Mar2010 14:10 Oct 28, 2010 Jkt 223001 PO 00000 Frm 00037 Fmt 4701 Sfmt 4700 E:\FR\FM\29OCR2.SGM 29OCR2by definition compliant with§ 600.9(a)(1)(i), and no exemption fromthe provisions of § 600.9 of these finalregulations is necessary. We do notagree that State institutions should beexempt from the requirement that aState have a process to review andappropriately act on complaintsconcerning an institution. We believethat students, their families, and thepublic should have a process to lodgecomplaints that is independent of aninstitution.Changes: None.Religious InstitutionsComment: Two commenters requesteda definition of the term religiousinstitution. One of these commentersfelt strongly that a religious exemptionmust be tailored to prevent loopholesfor abuse but needed to offer analternative for religious institutions sothat changes to a State’s constitutionwould not be necessary. The commentersuggested that a religious institutionshould be exempted if the institution isowned, controlled, operated, andmaintained by a religious organizationlawfully operating as a nonprofitreligious corporation pursuant to theInternal Revenue Code and meets thefollowing requirements:• Instruction is limited to theprinciples of that religious organization.• A diploma or degree awarded bythe institution is limited to evidence ofcompletion of that education.• The institution offers degrees anddiplomas only in the beliefs andpractices of the church, religiousdenomination, or religious organization.• The institution does not awarddegrees in any area of physical science.• Any degree or diploma granted bythe institution contains on its face, inthe written description of the title of thedegree being conferred, a reference tothe theological or religious aspect of thedegree’s subject area.• A degree awarded by the institutionreflects the nature of the degree title,such as ‘‘associate of religious studies,’’‘‘bachelor of religious studies,’’ ‘‘masterof divinity,’’ or ‘‘doctor of divinity.’’Discussion: We agree with thecommenters that a definition of areligious institution is needed to clarifythe applicability of a religiousexemption. We also agree that amodification to the proposedregulations is needed to allow a State toprovide an exemption to religiousinstitutions without requiring the Stateto change its constitution.Changes: We have expanded§ 600.9(b) to provide that an institutionis considered to be legally authorized bythe State if it is exempt from State