Proposed Rule2025-16836
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
September 3, 2025
Issuing agencies
Veterans Affairs Department
Abstract
The Department of Veterans Affairs (VA) publishes a supplemental notice of proposed rulemaking (SNPRM) to amend its definitions of the terms "independent study," "distance learning," and "resident learning," and to establish a new term, "standard curriculum." These proposed amendments, which distinguish distance learning from resident learning and independent study from standard curriculum, address concerns from VA stakeholders who view independent study and distance learning as having distinct and separate meanings and clarify State Approving Agency (SAA) jurisdiction over courses taken solely by distance learning.
Full Text
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<title>Federal Register, Volume 90 Issue 168 (Wednesday, September 3, 2025)</title>
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[Federal Register Volume 90, Number 168 (Wednesday, September 3, 2025)]
[Proposed Rules]
[Pages 42552-42556]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2025-16836]
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DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 21
[Docket No. VA-2021-VBA-0024]
RIN 2900-AQ89
State Approving Agency Jurisdiction Rule
AGENCY: Department of Veterans Affairs.
ACTION: Supplemental notice of proposed rulemaking.
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SUMMARY: The Department of Veterans Affairs (VA) publishes a
supplemental notice of proposed rulemaking (SNPRM) to amend its
definitions of the terms ``independent study,'' ``distance learning,''
and ``resident learning,'' and to establish a new term, ``standard
curriculum.'' These proposed amendments, which distinguish distance
learning from resident learning and independent study from standard
curriculum, address concerns from VA stakeholders who view independent
study and distance learning as having distinct and separate meanings
and clarify State Approving Agency (SAA) jurisdiction over courses
taken solely by distance learning.
DATES: Comments must be received by VA on or before November 3, 2025.
ADDRESSES: You may submit comments through <a href="http://www.regulations.gov">www.regulations.gov</a> under
RIN 2900-AQ89. That website includes a plain-language summary of this
rulemaking. Instructions for accessing agency documents, submitting
comments, and viewing the rulemaking docket, are available on
<a href="http://www.regulations.gov">www.regulations.gov</a> under ``FAQ.''
FOR FURTHER INFORMATION CONTACT: Thomas Alphonso, Veterans Benefits
Administration, (202) 461-9800.
SUPPLEMENTARY INFORMATION: On October 14, 2021, VA published a notice
of proposed rulemaking to amend its regulations that govern State
Approving Agencies' (SAA) jurisdiction for approval of courses,
including online distance learning courses, to distinguish online
distance learning courses from resident training and independent study-
resident training courses, to clarify SAA authority and jurisdiction
regarding the approval or disapproval of any course, and to clarify the
adjudicatory outcomes available to an SAA when reviewing an approval
application. 86 FR 57094. In response to the notice of proposed
rulemaking, two commenters questioned the appropriateness of VA's
categorization of online distance learning and recommended that VA
``modernize'' its definitions to improve oversight of distance
education programs. One commenter stated that distance education is an
alternative delivery mode to in-person instruction and must include
regular and substantive interactions with qualified faculty. Another
commenter also stated that distance learning must include regularly
scheduled interaction between student and instructor, whether
synchronously or asynchronously, and that the rules governing
independent study are not applicable to distance learning.
Furthermore, in the past, our stakeholder partners, including SAAs
and veterans' advocacy organizations, have expressed concern with the
potential negative impacts of defining all distance learning as
independent study. They have asserted that considering distance
learning as a subset of independent study has effectively barred SAA
approval of non-college degree (NCD) programs, which are not
accredited, conducted via distance learning. Because VA is not
authorized to approve enrollment in independent study programs unless
they are accredited and lead to a standard college degree or
certificate offered by an institution of higher learning, see 38 CFR
21.4267(f), under current regulations that define distance learning as
independent study, VA cannot approve enrollment in NCD programs
conducted via distance learning, even though such programs may be high
quality and provide many vocational and economic opportunities to
veterans. There is a comprehensive set of rules that govern SAA
approval of non-accredited programs to ensure the integrity of the
programs that are available to veterans. Specifically, 38 U.S.C.
3676(c)(1) requires that non-accredited ``courses, curriculum, and
instruction [be] consistent in quality, content, and length with
similar courses in public schools and other private schools in the
State, with recognized accepted standards.'' Thus, considering distance
learning as a subset of independent study limits the otherwise many
worthwhile vocational and economic opportunities available to veterans.
Moreover, classifying all distance learning programs, which are
often offered as programs with regularly scheduled classes, as
``independent study,'' when a student does not have independence over
what he or she studies, is confusing for VA beneficiaries and
educational institution partners, as the commenters expressed, because
it contradicts the plain meaning of the term ``independent study'' and
VA's interpretation of that term in 38 CFR 21.4267(b)(1) in
implementing 38 U.S.C. 3680A(a)(4). Merriam-Webster defines
``independent study'' as ``a course of study done by a student without
an instructor or with help from an instructor but not as part of an
organized class.'' See <a href="http://Merriam-Webster.com">Merriam-Webster.com</a> Dictionary, <a href="http://www.merriam-webster.com/dictionary/independent%20study">www.merriam-webster.com/dictionary/independent%20study</a>, accessed August 14, 2025.
And VA currently considers a course to be offered by independent study
if it includes interaction between student and faculty, whether the
interaction is in person or through use of communications technology,
and the course is offered without any regularly scheduled, conventional
classroom or laboratory sessions. 38 CFR 21.4267(b)(1). Thus,
considering distance learning as a subset of independent study is in
conflict with our current interpretation of the term ``independent
study'' in Sec. 21.4267(b)(1).
VA agrees with the points raised by commenters and stakeholders and
believes it is not appropriate to continue classifying all online
training as independent study merely because the training is online
(i.e., not conducted within a traditional classroom setting). Finding
no basis for continuing to define distance learning as independent
study, VA proposes to amend the definitions of the terms ``independent
study,'' ``distance learning,'' ``resident learning'' and add a new
term, ``standard curriculum,'' to round out the
[[Page 42553]]
modalities of learning and to distinguish distance learning from
resident learning and independent study from standard curriculum. The
proposed changes would allow VA to approve enrollment in NCD programs
conducted via distance learning if otherwise warranted and would
improve veterans' opportunities without diminishing safeguards.
Proposed Definition of Standard Curriculum
VA proposes to include four modalities of training in our
regulations to encompass all possible modalities, which would require
adding a new term, ``standard curriculum,'' at 38 CFR 21.4200(mm). We
would define standard curriculum as a class in which the instructor
dictates a uniform structure for all students and which would
accordingly not meet the definition of independent study. Current 38
CFR 21.4267, which governs approval of independent study courses,
treats ``resident training'' and ``independent study'' as mutually
exclusive by describing ``resident training'' courses as requiring
``regularly scheduled, standard class sessions'' and ``independent
study'' courses as not having ``any regularly scheduled, conventional
classroom or laboratory sessions.'' However, educational institutions
do not view these modalities as mutually exclusive, and we understand
there can be an independent study program that involves some resident
training. VA believes the new differentiation of standard curriculum
from independent study, which would more accurately describe the
different modalities of learning for purposes of more accurately
approving courses, would best serve our beneficiaries, as well as our
educational partners, and would help us to better administer 38 U.S.C.
3680A(a)(4) with its limitation on enrollments in independent study
programs.
Proposed Definition of Independent Study
VA proposes adding a new definition for ``independent study'' at 38
CFR 21.4200(nn) that bases the classification of ``independent study''
on the level of autonomy a student has regarding the subject matter and
content of the course and allows for periodic and substantive
interaction with an instructor. We propose to allow a student to pursue
independent study through either resident or distance learning. We also
propose to remove the distinction between a course offered entirely by
independent study and in part by independent study as unnecessary. This
approach better aligns with how our educational partners, including
those who commented on the proposed rule, understand the term
``independent study,'' and is consistent with the commonly accepted
definition of that term.
Accordingly, we would remove the paragraph (a) designation and
heading and paragraphs (b) and (c) from current Sec. 21.4267 and
incorporate the content of those paragraphs, which provide the
definition of independent study, in the new definition of ``independent
study'' in Sec. 21.4200(nn) with appropriate cross references. We
further propose to remove paragraphs (d) and (e) from current Sec.
21.4267 and incorporate the examples of undergraduate and graduate
resident training from those paragraphs in Sec. 21.4200(nn)(2) as
examples of training that would not be independent study. Paragraphs
(f) and (g) would be retained in Sec. 21.4267 as new paragraphs (b)
and (c) since they contain course approval rules not related to the
proposed definition.
Proposed Definition of Distance Learning
We currently define the term ``distance learning'' in 38 CFR
21.9505 as any program that satisfies the Department of Education's
(ED) definition of ``distance education'' in 20 U.S.C. 1003(7). ED's
definition of distance learning, which involves use of technology to
deliver instruction to students who are separated from the instructor
to support regular and substantive interaction between the students and
the instructor, synchronously or asynchronously, does not include
information such as requirements related to classroom attendance, which
VA needs to administer monthly housing payments under the Post-9/11 GI
Bill. Pursuant to 38 U.S.C. 3313(c)(1)(B)(iii) and 38 CFR
21.9640(b)(1)(ii), monthly housing payments under the Post-9/11 GI Bill
are different depending on whether a student attends any amount of any
training in a classroom setting. Under section 3313(c)(1)(B)(iii) and
Sec. 21.9640(b)(1)(ii), a reduced housing allowance is paid to
students who receive training solely through distance learning. We
would continue to pay a reduced housing allowance to students who
receive training solely through distance learning under VA's new
definition for ``distance learning'' in Sec. 21.4200(oo).
VA proposes to remove the current regulatory definition of
``distance learning'' from 38 CFR 21.9505 and add a new definition at
38 CFR 21.4200(oo), which would incorporate ED's definition of
``distance education'' from 20 U.S.C. 1003(7) (as referenced in Sec.
21.9505), but add an exception stating that we will not consider
training to be distance learning when the student is required to be in
a physical classroom at a designated time to access the technology,
instructional materials, or the like. See 38 CFR 21.4233(c)(2).
Proposed Definition of Resident Learning
VA stakeholders view resident learning as involving any ``classroom
instruction'' with an instructor physically co-located in the same
classroom with the students, or with the student required to be in a
classroom to access technology to receive distance learning instruction
regardless of where the instructor is located. Conversely, stakeholders
would not view correspondence training (e.g., instruction through
letter or mail) as ``resident learning.'' These views are rational, and
we agree to change our definition to reflect this understanding. Thus,
VA proposes a simplified definition of resident learning at new 38 CFR
21.4200(pp) to distinguish resident learning from distance learning and
correspondence training. We do not believe it is necessary to specify
types of resident training, such as resident institutional and flight
training, and are accordingly proposing to remove those examples from
current Sec. 21.4267(d)(1) and (4) without incorporating them in the
new definition in Sec. 21.4200(pp). In addition, we would make
conforming amendments in 38 CFR 21.4200(o)(1)(i) and (ii).
Additionally, we propose conforming amendments to Sec.
21.4250(a)(3). Current Sec. 21.4250(a)(3) provides that, if an
educational institution offers a course by independent study or by
correspondence, only the SAA for the State where the main campus is
located may approve the course for VA training. Under this provision,
because all distance learning has until now been considered independent
study, the SAA for the school's main campus has had jurisdiction over
approval of distance learning programs. With the changes to the
definitions of ``independent study'' and ``distance learning,'' it
would no longer be the case that all distance learning would be
independent study and ``distance learning'' is not separately mentioned
in Sec. 21.4250. Thus, our regulations would not address which SAA
would hold jurisdiction over distance learning programs that are not
independent study. To make clear that we would continue to require the
SAA for the State in which a school's main campus is located to approve
all
[[Page 42554]]
programs, including distance learning programs, we propose to add ``or
solely through distance learning'' to Sec. 21.4250(a)(3). In addition,
we propose revisions to Sec. 21.4250(a)(3) to clarify that independent
study can be either resident or distance learning.
Finally, in the proposed rule, in Sec. 21.4250(a)(2), we
inadvertently stated that if a school with a main campus in a State
offers a resident course not located in the ``same'' State, only the
SAA for the State where the school's main campus is located may approve
the course. The proposal to include the word ``same'' was
unintentional. We are now proposing to correct the error in the
proposed rule and instead make no changes to current Sec.
21.4250(a)(2).
Safeguarding Veterans and Beneficiaries From Predatory Practices
The Department seeks feedback about how to provide flexibility to
institutions that offer quality distance learning programs that are
ineligible to qualify as GI Bill approved programs under the current
rule but provide value to students (like remedial and vocational
courses and FAA approved distance learning modules) while ensuring that
we preserve program quality and integrity, protecting VA educational
beneficiaries from fraudulent and predatory schools.
Coordination of SNPRM Comments and NPRM Comments
Before making a final decision on the proposed changes and the
issuance of a final rulemaking, VA will consider all comments received
during the comment period ending on December 13, 2021, in response to
the October 2021 notice of proposed rulemaking, and all comments
received in response to this SNPRM by the closing date. If you
submitted a comment regarding the October 2021 notice of proposed
rulemaking, you do not need to submit the same comment again. This
SNPRM does not reopen the other proposals that were contained in the
October 2021 notice of proposed rulemaking or request further comments
on those proposals. VA plans to publish a final rulemaking based on
this SNPRM and comments we receive in response to this notice, and on
the original notice of proposed rulemaking and comments we received in
response to that notice.
Executive Orders 12866, 13563, and 14192
VA examined the impact of this rulemaking as required by Executive
Orders 12866 (Sept. 30, 1993) and 13563 (Jan. 18, 2011), which direct
agencies to assess all costs and benefits of available regulatory
alternatives and, if regulation is necessary, to select regulatory
approaches that maximize net benefits. The Office of Information and
Regulatory Affairs has determined that this rulemaking is not a
significant regulatory action under Executive Order 12866, as
supplemented by Executive Order 13563. This proposed rule is expected
to be a deregulatory action under Executive Order 14192. The regulatory
impact analysis associated with this rulemaking can be found as a
supporting document at <a href="http://www.regulations.gov">www.regulations.gov</a>.
Regulatory Flexibility Act
The Secretary hereby certifies that this SNPRM 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 with the administration
of VA's educational benefits. Neither SAAs nor VA, when acting in the
role of a SAA, qualify as ``small'' per NCAIS size standards.
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
This proposed rule would not 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.
Paperwork Reduction Act
Although this action contains provisions (38 CFR 21.4250 and
21.4259) constituting a collection of information under the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501-3521), no new or revised
collection of information is associated with this SNPRM. The collection
of information for Sec. Sec. 21.4250 and 21.4259 is currently approved
by the Office of Management and Budget (OMB) and has been assigned OMB
control number 2900-0051.
Assistance Listing
The Assistance Listing numbers and titles for the programs affected
by this document are 64.027-64.028, Post-9/11 Veterans Educational
Assistance; 64.032, Montgomery GI Bill Selected Reserve; 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, 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,
Vocational rehabilitation.
Signing Authority
Douglas A. Collins, Secretary of Veterans Affairs, approved this
document on July 24, 2025, and authorized the undersigned to sign and
submit the document to the Office of the Federal Register for
publication electronically as an official document of the Department of
Veterans Affairs.
Jennifer D. Williams,
Alternate Federal Register Liaison Officer, Department of Veterans
Affairs.
For the reasons stated in the preamble, the Department of Veterans
Affairs proposes to amend 38 CFR part 21 as set forth below:
PART 21--VETERANS READINESS AND EMPLOYMENT 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. 21.4200 by:
0
a. In paragraph (o)(1)(i), removing ``Resident courses'' and adding in
its place ``Resident or distance learning courses''.
0
b. In paragraph (o)(1)(ii), removing ``Independent study courses'' and
adding in its place ``Standard curriculum or independent study
courses''.
0
c. Adding paragraphs (mm), (nn), (oo), and (pp) after the authority
citation for paragraph (ll).
The additions read as follows:
Sec. 21.4200 Definitions.
* * * * *
(mm) Standard curriculum. A standard curriculum class is a class
(i.e., unit subject) in which an instructor dictates a uniform
structure for all students, determining tasks, such as required
readings, research, and work products, setting standards for evaluation
of students' work, and
[[Page 42555]]
establishing the timeframe for completion of the work, without
consultation with the student or tailoring on a student-by-student
basis.
(nn) Independent study. (1) An independent study class is a class
(i.e., unit subject) in which the student follows a course of study
with predefined objectives and works with a faculty member to decide
how the student is going to meet those objectives. The student and
faculty member together agree on the student's tasks required for
meeting the objectives (e.g., required readings, research, and work
products, any scheduled classes), the criteria for evaluating the
student's work, and the relative timeframe for completion of the work.
The student interacts with the faculty member on a periodic and
substantive basis to assure progress towards the objectives. Completion
of coursework and interaction between the student and faculty member
may be in-person through resident learning, virtually through distance
learning, or a combination of both.
(2) Notwithstanding any of the above requirements, the following
courses are never considered independent study:
(i) A cooperative course (see 38 CFR 21.4233(a) and 21.4257);
(ii) A farm cooperative course (see 38 CFR 21.4233(d) and 21.4264);
(iii) A course approved as a correspondence course (see 38 CFR
21.4256);
(iv) A course of student teaching;
(v) A graduate-level class (i.e., unit subject) consisting of
research (either on campus or in absentia) necessary for the
preparation of the student's--
(A) Master's thesis,
(B) Doctoral dissertation, or
(C) Similar treatise which is prerequisite to the degree being
pursued.
(oo) Distance learning. (1) Distance learning means any modality of
instruction for a class (i.e., unit subject) that satisfies the
following criteria:
(i) Instruction is delivered exclusively through the use of one or
more of the technologies described in paragraph (2);
(ii) Students are physically separated from the instructor; and
(iii) There is regular and substantive interaction between the
student and the instructor.
(2) For the purposes of paragraph (1), the technologies used may
include--
(i) The internet;
(ii) One-way and two-way transmissions (such as through open
broadcast/open-circuit, closed broadcast/closed-circuit, cable,
microwave, broadband lines, fiber optics, satellite, or wireless
communications devices), but not letter or mail;
(iii) Audio conferencing; or
(iv) Recorded media (such as video cassettes, CD-ROMs, DVDs).
(3) A modality of instruction for a class (i.e., unit subject) will
not be considered distance learning if it requires any classroom
attendance when the instructional material and technologies described
in paragraph (2) are only accessible at the educational institution
during the regularly scheduled times synchronous with the times that
other students enrolled in the same class must attend, even if there
are multiple simultaneous training sessions at multiple classrooms of
the same educational institution, and even if the classrooms are
geographically dispersed; however, the classrooms must be located at
the main campus, a branch campus, or an extension, as those terms are
defined in 38 CFR 21.4266, of the same educational institution.
(pp) Resident learning. Resident learning is resident training (as
used in 38 U.S.C. 3313(g)(3)(A)(ii)(I)(aa)) for a class (i.e., unit
subject) that does not meet the definition of distance learning in
paragraph (oo) and does not qualify as a correspondence course.
0
3. Amend Sec. 21.4250 by:
0
a. Revising paragraph (a)(3);
0
b. Revising in paragraph (b) the introductory text following the
paragraph heading;
0
c. Revising paragraph (b)(2); and
0
d. Removing paragraph (b)(3).
The revisions read as follows:
Sec. 21.4250 Course and licensing and certification test approval;
jurisdiction and notices.
(a) * * *
* * * * *
(3) If an educational institution offers a course by independent
study (either resident learning or distance learning), by
correspondence, or solely through distance learning, 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. 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.
* * * * *
(2) Notice of denial, suspension, or withdrawal. See Sec.
21.4259(a)(3) and (b).
* * * * *
0
4. Revise Sec. 21.4259 to read as follows:
Sec. 21.4259 Denial of an Application for Approval, Suspension of
Approval, Withdrawal of Approval.
(a)(1) A State approving agency will 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 38 CFR 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.
[[Page 42556]]
(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)
0
5. Amend Sec. 21.4267 by:
0
a. Revising the section heading;
0
b. Removing the paragraph (a) heading;
0
c. Revising paragraph (a);
0
d. Removing paragraphs (b) through (e);
0
e. Redesignating current paragraphs (f) and (g) as paragraphs (b) and
(c);
0
f. Removing the headings for redesignated paragraphs (b) and (c); and
0
g. Revising redesignated paragraph (b) introductory text.
The revisions read as follows:
Sec. 21.4267 Approval of nonaccredited independent study courses.
(a) Except as provided in Sec. Sec. 21.4252(g), 21.7120(d), and
21.7622(f) of this part, VA may not pay educational assistance for a
nonaccredited course which is offered in whole or in part by
independent study (as defined in Sec. 21.4200(nn)).
(Authority: 38 U.S.C. 3014, 3523, 3672, 3676(e), 3680A(a))
(b) A State approving agency may approve a course offered by
independent study only if the course--
* * * * *
0
6. Amend Sec. 21.9505 by removing the entry for ``Distance learning''.
[FR Doc. 2025-16836 Filed 9-2-25; 8:45 am]
BILLING CODE 8320-01-P
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