Proposed Rule2021-21496
State Approving Agency Jurisdiction Rule
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
October 14, 2021
Issuing agencies
Veterans Affairs Department
Abstract
The Department of Veterans Affairs (VA) proposes to amend existing regulations to clarify State Approving Agencies' (SAA) jurisdiction for approval of online distance learning courses and distinguish such courses from "traditional classroom" resident training courses and independent study-resident training courses (also known as "hybrid" courses), which are typically a combination of online and traditional training. Additionally, VA seeks to clarify SAA authority and jurisdiction with regard to approval and disapproval of any course, or licensing or certification test, and to clarify the adjudicatory outcomes available to an SAA when reviewing an approval application for any type of course (i.e., approval, denial of an application for approval, suspension of approval, or withdrawal of approval).
Full Text
<html>
<head>
<title>Federal Register, Volume 86 Issue 196 (Thursday, October 14, 2021)</title>
</head>
<body><pre>
[Federal Register Volume 86, Number 196 (Thursday, October 14, 2021)]
[Proposed Rules]
[Pages 57094-57097]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-21496]
-----------------------------------------------------------------------
DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 21
RIN 2900-AQ89
State Approving Agency Jurisdiction Rule
AGENCY: Department of Veterans Affairs.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The Department of Veterans Affairs (VA) proposes to amend
existing regulations to clarify State Approving Agencies' (SAA)
jurisdiction for approval of online distance learning courses and
distinguish such courses from ``traditional classroom'' resident
training courses and independent study-resident training courses (also
known as ``hybrid'' courses), which are typically a combination of
online and traditional training. Additionally, VA seeks to clarify SAA
authority and jurisdiction with regard to approval and disapproval of
any course, or licensing or certification test, and to clarify the
adjudicatory outcomes available to an SAA when reviewing an approval
application for any type of course (i.e., approval, denial of an
application for approval, suspension of approval, or withdrawal of
approval).
DATES: Comments must be received by VA on or before December 13, 2021.
ADDRESSES: Comments may be submitted through <a href="http://www.Regulations.gov">www.Regulations.gov</a>.
Comments should indicate that they are submitted in response to RIN
2900-AQ89_State Approving Agency Jurisdiction Rule. Comments received
will be available at <a href="http://regulations.gov">regulations.gov</a> for public viewing, inspection or
copies.
FOR FURTHER INFORMATION CONTACT: Cheryl Amitay, Chief, Policy and
Regulation Development Staff (225C), Education Service, Department of
Veterans Affairs, 810 Vermont Avenue NW, Washington, DC 20420, (202)
461-9800. (This is not a toll-free telephone number.)
SUPPLEMENTARY INFORMATION: Currently, for purposes of determining SAA
jurisdiction, VA's regulation divides courses into residential courses
offered in the same state as the state in which the educational
institution is located, 38 CFR 21.4250(a)(1), residential courses
[[Page 57095]]
offered in one state by an educational institution located in a
different state, Sec. 21.4250(a)(2), and courses offered by
independent study or correspondence, Sec. 21.4250(a)(3). Current Sec.
21.4250(a)(3) provides that if an educational institution offers a
program through independent study or by correspondence, only the SAA
for the State where the school's main campus is located may approve the
course for VA training. This rule, however, does not explicitly address
online distance learning courses. Some stakeholders have thus
erroneously concluded that this rule does not address the appropriate
SAA of jurisdiction for online distance learning programs. VA views
online distance learning as a subset of courses offered through
independent study and, therefore, views current Sec. 21.4250(a)(3) as
controlling which SAA has jurisdiction to approve a course offered via
online distance learning, i.e., the SAA for the State in which the
school's main campus is located has exclusive jurisdiction over the
approval of online distance learning programs.
The relationship between independent study and online distance
learning is further clarified in 38 CFR 21.4267(b). VA defines
independent study in that section for the purposes of educational
assistance programs as a program that ``consists of a prescribed
program of study with provision for interaction between the student and
[instructor] . . . through use of communications technology, including
. . . videoconferencing, computer technology (to include electronic
mail), and other electronic means'' and is ``offered without any
regularly scheduled, conventional classroom or laboratory sessions.''
38 CFR 21.4267(b)(1)(i) and (ii). The definition provided for
independent study encompasses distance learning in VA's view, which
includes courses offered online. Therefore, online distance learning is
currently classified as independent study for the purposes of VA
educational assistance programs. Consequently, when current Sec.
21.4250(a)(3) states that the SAA for the State where the educational
institution's main campus is located is the SAA of jurisdiction for the
approval of independent study program, it is likewise stating that such
SAA is the SAA of jurisdiction for the approval of online distance
learning programs.
Nevertheless, stakeholders have informed VA that the connection
between ``independent study'' in Sec. 21.4250(a)(3) and the definition
of that term in Sec. 21.4267(b)(1), which incorporates online distance
learning, is not apparent to them. Therefore, even though Sec.
21.4250(a)(3) already addresses the appropriate SAA jurisdictional
rules for independent study in VA's view, and Sec. 21.4267(b)(1)(i)
and (ii) appropriately classifies online distance learning as
independent study for the purposes of VA educational assistance, VA
proposes to amend Sec. 21.4250(a)(3) to explicitly include the term
``online distance learning.'' Such an amendment would not substantively
change the current definitions. Rather, it is proposed to curtail
confusion among some SAAs and educational institutions while
maintaining the status quo.
Furthermore, we propose to also include the qualifier ``solely'' to
the type of courses addressed in our proposed amendment to Sec.
21.4250(a)(3). The qualifier ``solely'' is appropriate and preferable
to avoid confusion regarding jurisdiction for SAA evaluation of any
training that is not solely through independent study (including online
distance learning), correspondence, or any combination of independent
study (including online distance learning) and correspondence. Unless
training is offered ``solely'' via independent study (including online
distance learning), correspondence, or any combination of independent
study (including online distance learning) and correspondence, it is
addressed in either Sec. 21.4250(a)(1), or (2). Current paragraph
(a)(1) addresses ``traditional classroom'' resident training and
independent study-resident training, also known as ``hybrid'' training,
which VA considers resident training for the purpose of VA approval
when the resident training is offered in the same state in which the
educational institution is located. Current and proposed paragraph
(a)(2) addresses residential courses offered in one state by an
educational institution located in a different state and ``hybrid''
training when the resident training is offered in one state by an
educational institution located in a different state. VA defined
``resident training'' and ``independent study-resident training'' for
purposes of the Selected Reserve Educational Assistance Program in 38
CFR 21.7520(b)(22) and (12), respectively, but generally understands
those terms as they are defined in that section. The distinction
between courses offered exclusively by independent study and those
offered in part by independent study is also addressed in Sec.
21.4267. Section 21.4267(b)(1) defines courses offered ``entirely by
independent study,'' while Sec. 21.4267(b)(2) defines courses offered
``in part by independent study.'' VA intends for Sec. 21.4250(a)(1) or
(2) to control jurisdiction unless the course is offered exclusively
through independent study (including online distance learning),
correspondence, or a combination of independent study (including online
distance learning) and correspondence. If offered solely via
independent study (including online distance learning), correspondence,
or a combination of these methods, only the SAA for the state where the
educational institution's main campus is located may approve
independent study (including online distance learning), correspondence,
and courses provided via a combination of independent study (including
online distance learning) and correspondence, in accordance with Sec.
21.4250(a)(3).
Additionally, current Sec. 21.4250(b)(3), titled ``Failure to
act,'' states that an SAA can respond to a school's application for
program approval by issuing a notice to the school that the SAA does
not intend to act on the school's application, and the school may,
instead, request approval from the Secretary. Issuance of such a notice
is not a program denial but rather serves as an attempted abdication of
the SAA's prescribed role in 38 U.S.C. 3672(a)(1) and for which SAAs
are reimbursed under 38 U.S.C. 3674(a)(1). Therefore, VA proposes to
remove this exception and to require an SAA with jurisdiction to
approve or disapprove any course for which a VA beneficiary seeks to
use his or her VA educational benefits. However, expressly eliminating
the authority of an SAA to take no action on an application arguably
creates ambiguity as to what an SAA should do when a school submits an
incomplete, insufficient, or otherwise unapprovable application, or
when the SAA lacks jurisdiction to make a determination on the
application. In those cases, the SAA should deny the application--an
implicit authority VA views as naturally and obviously arising as the
alternative to the explicit authority to approve an application. While
SAAs already have this authority in VA's view, some SAAs have expressed
a belief that they lack the authority to issue a denial of approval
because that term is not specifically mentioned in any regulatory
section.
To remove any potential ambiguity, VA proposes to amend Sec.
21.4250(b) by removing the language currently following the heading
``State approving agencies'' and adding language to explicitly list
``Approval of an Application for Approval,'' ``Denial of an Application
for Approval,'' ``Suspension of Approval,'' and ``Withdrawal of
Approval'' as the four types of decision an SAA is authorized
[[Page 57096]]
to make under 38 U.S.C. 3672 and 3679. VA does not view this change as
substantive in nature but, rather, is making the change to clarify
existing authority based on stakeholder feedback.
Additionally, VA proposes to amend 38 CFR 21.4259 to include the
new phrasing for the denial of an application in proposed Sec.
21.4250(b). VA proposes to amend Sec. 21.4259(a) to explicitly state
that an SAA may deny an application when the program either fails to
satisfy any approval criterion or when the program is outside the SAA's
jurisdiction. VA proposes to include, in proposed Sec. 21.4259(a)(3)
and (b), denial of an application for approval in the list of reasons
for which an SAA must send a notification of decision to the
educational institution and VA, respectively. Additionally, VA proposes
to amend Sec. 21.4259(b) to explicitly state that the notification to
VA must set forth the reasons for such denial, suspension, or
withdrawal. Under 38 U.S.C. 3672(a) an SAA must notify VA of its
reasons for disapproval of a previously approved course. VA intends to
explicitly apply the requirement under 38 U.S.C. 3672(a) to every SAA
action that may negatively impact a student's ability to use GI Bill
benefits at a particular educational institution. The language
requiring the SAA to set forth reasons for adverse approval action is
being moved from current Sec. 21.4250(b)(2), which contains vital
notification requirements, to proposed Sec. 21.4259(a)(3) and (b)
because it appears to better fit with proposed Sec. 21.4259. We
propose to include a cross-reference in Sec. 21.4250(b)(2) to indicate
that requirements for an SAA's notice of denial, suspension, or
withdrawal is covered in Sec. 21.4259(a)(3) and (b). VA further
proposes to relocate the sentence, ``It is incumbent upon the State
approving agency to determine the conduct of courses and to take
immediate appropriate action in each case in which it is found that the
conduct of a course in any manner fails to comply with the requirements
for approval,'' in a revised form, from current Sec. 21.4259(a)(3) to
proposed Sec. 21.4259(a)(2) as a matter of style, not to have any
substantive effect.
Lastly, VA would remove the term ``disapproval'' from Sec. 21.4259
and replace it with the terms ``Denial of an Application for Approval''
and ``Withdrawal of Approval'' as applicable. VA interprets, as it
always had, its authority to disapprove courses in 38 U.S.C. 3679 as
including authority to deny applications for approval, suspend
approvals, and withdraw approvals. This non-substantive change would
provide consistency in the terminology used throughout proposed Sec.
21.4259 and proposed Sec. 21.4250(b).
In the interest of properly assisting SAAs in effectively and
efficiently administering VA education benefits approval standards and
resolve confusion expressed by some SAAs in recent years regarding how
to respond to educational institutions seeking approval of strictly
online distance learning training courses, it is necessary for VA to
make these regulatory amendments. Additionally, these amendments would
help ensure course approvals or denials are made by the correct SAA and
to provide appropriate guidance regarding the denial of an application
for approval.
Executive Orders 12866 and 13563
Executive Orders 12866 and 13563 direct agencies to assess the
costs and benefits of available regulatory alternatives and, when
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, and other advantages; distributive impacts;
and equity). Executive Order 13563 (Improving Regulation and Regulatory
Review) emphasizes the importance of quantifying both costs and
benefits, reducing costs, harmonizing rules, and promoting flexibility.
The Office of Information and Regulatory Affairs has determined that
this rule is not a significant regulatory action under Executive Order
12866. The Regulatory Impact Analysis associated with this rulemaking
can be found as a supporting document at www.<a href="http://regulations.gov">regulations.gov</a>.
Regulatory Flexibility Act
The Secretary hereby certifies that this proposed rule would not
have a significant economic impact on a substantial number of small
entities as they are defined in the Regulatory Flexibility Act (5
U.S.C. 601-612). VA has determined there are no small entities involved
with the approval of online distance learning courses or any
involvement with administering VA's educational benefits. Therefore,
pursuant to 5 U.S.C. 605(b), the initial and final regulatory
flexibility analysis requirements of 5 U.S.C. 603 and 604 do not apply.
Unfunded Mandates
The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C.
1532, that agencies prepare an assessment of anticipated costs and
benefits before issuing any rule that may result in the expenditure by
State, local, and tribal governments, in the aggregate, or by the
private sector, of $100 million or more (adjusted annually for
inflation) in any one year. This proposed rule would have no such
effect on State, local, and tribal governments, or on the private
sector.
Paperwork Reduction Act
Although this action contains provisions constituting collections
of information at 38 CFR 21.4250 and 21.4259 under the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501-3521), no new or proposed revised
collections of information are associated with this proposed rule. The
information collection requirements for Sec. Sec. 21.4250 and 21.4259
are currently approved by the Office of Management and Budget (OMB) and
have been assigned OMB control number 2900-0051.
Catalog of Federal Domestic Assistance
The Catalog of Federal Domestic Assistance numbers and titles for
the programs affected by this document are 64.027, Post-9/11 Veterans
Educational Assistance; 64.028, Post-9/11 Veterans Educational
Assistance; 64.032, Montgomery GI Bill Selected Reserve; Reserve
Educational Assistance Program; 64.117, Survivors and Dependents
Educational Assistance; 64.120, Post-Vietnam Era Veterans' Educational
Assistance; 64.124, All-Volunteer Force Educational Assistance.
List of Subjects in 38 CFR Part 21
Administrative practice and procedure, Armed forces, Civil rights,
Claims, Colleges and universities, Conflict of interests, Defense
Department, Education, Employment, Grant programs--education, Grant
programs--veterans, Health care, Loan programs--education, Loan
programs--veterans, Manpower training programs, Reporting and
recordkeeping requirements, Schools, Travel and transportation
expenses, Veterans, Vocational education, and Vocational
rehabilitation.
Signing Authority
Denis McDonough, Secretary of Veterans Affairs, approved this
document on September 14, 2021, and authorized the undersigned to sign
and submit the document to the Office of the Federal Register for
publication
[[Page 57097]]
electronically as an official document of the Department of Veterans
Affairs.
Jeffrey M. Martin,
Assistant Director, Office of Regulation Policy & Management, Office of
the Secretary, Department of Veterans Affairs.
For the reasons stated in the preamble, VA proposes to amend 38 CFR
part 21 as set forth below:
PART 21--VOCATIONAL REHABILITATION AND EDUCATION
Subpart D--Administration of Educational Assistance Programs
0
1. The authority citation for part 21, subpart D continues to read as
follows:
Authority: 10 U.S.C. 2141 note, ch. 1606; 38 U.S.C. 501(a), chs.
30, 32, 33, 34, 35, 36, and as noted in specific sections.
0
2. Amend Sec. 21.4250 by revising paragraphs (a)(2) and (3), revising
in paragraph (b) the introductory text following the paragraph heading,
revising paragraph (b)(2), and removing paragraph (b)(3) to read as
follows:
Sec. 21.4250 Course and licensing and certification test approval;
jurisdiction and notices.
(a) * * *
* * * * *
(2) If an educational institution with a main campus in a State
offers a resident course not located in the same State, only the State
approving agency for the State where the educational institution's main
campus is located may approve the course for VA training. If the State
approving agency chooses to approve a resident course (other than a
flight course) not leading to a standard college degree, it must also
approve the class schedules of that course.
(3) If an educational institution offers a course solely by
independent study as defined in Sec. 21.4267(b)(1), which includes
online distance learning, solely by correspondence, as addressed in
Sec. 21.4256, or solely by a combination of independent study and
correspondence, only the State approving agency for the State where the
educational institution's main campus is located may approve the course
for VA training.
* * * * *
(b) * * * State approving agencies may make four types of
decisions: Approval of an Application for Approval; Denial of an
Application for Approval; Suspension of Approval; and Withdrawal of
Approval.
(1) * * *
(2) Notice of denial, suspension, or withdrawal. See Sec.
21.4259(a)(3) and (b).
* * * * *
0
3. Revise Sec. 21.4259 to read as follows:
Sec. 21.4259 Denial of an Application for Approval, Suspension of
Approval, or Withdrawal of Approval.
(a)(1) A State approving agency may deny an application for
approval of any course, or licensing or certification test, after
reviewing the application and determining that either:
(i) The course, or licensing or certification test, fails to meet
any of the requirements for approval; or
(ii) The State approving agency lacks jurisdiction under Sec.
21.4250.
(2) With respect to any approved course, or licensing or
certification test, it is incumbent upon the State approving agency to
determine whether the course continues to comply with the requirements
for approval and to take immediate appropriate action in each case in
which the evidence of record establishes that the conduct of a course
fails to comply with the requirements for approval. If so found, the
State approving agency:
(i) Will suspend the approval of a course for new enrollments, or
approval of a licensing or certification test, for a period not to
exceed 60 days to allow the institution to correct any deficiencies; or
(ii) Will immediately withdraw the approval of the course, or
licensing or certification test, if any of the requirements for
approval that are not being met cannot be corrected within a period of
60 days.
(3) Upon denying an application for approval, or suspending or
withdrawing an approval, the State approving agency will notify the
educational institution by certified or registered letter with a return
receipt secured (38 U.S.C. 3679). The notification will set forth the
reasons for such denial, suspension, or withdrawal.
(b) Each State approving agency will immediately notify VA of each
course, or licensing or certification test, for which it has denied an
application for approval, or suspended or withdrawn the approval, and
set forth the reasons for such action.
(c) VA will deny an application for approval, or suspend or
withdraw the approval, of courses, or licensing or certification tests,
under conditions specified in paragraph (a) of this section where it
functions for the State approving agency. See Sec. 21.4150(c).
(d) VA will immediately notify the respective State approving
agency, if applicable, in each case VA suspends or withdraws approval
of any school under 38 U.S.C. chapter 31.
(The Office of Management and Budget has approved the information
collection provisions in this section under control number 2900-0051)
(Authority: 38 U.S.C. 3672, 3679, 3689)
[FR Doc. 2021-21496 Filed 10-13-21; 8:45 am]
BILLING CODE 8320-01-P
</pre></body>
</html>Indexed from Federal Register on October 14, 2021.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.