The Texas Higher Education Coordinating Board (Coordinating Board) adopts new §§1.110 - 1.120, concerning Student Complaint Procedure. Section 1.115 is adopted with changes to the proposed text as published in the September 14, 2012, issue of the Texas Register (37 TexReg 7254) and will be republished. Sections 1.110 - 1.114 and 1.116 - 1.120 are being adopted without changes and will not be republished.

Specifically, the student complaint procedure proposed rules set up a student complaint procedure to comply with the United States Department of Education's "Program Integrity" regulations, which require each state to have a student complaint procedure in order for public and private higher education institutions to be eligible for federal Title IV funds. In December 2011, the Office of the Attorney General of Texas issued an opinion stating that the Texas Higher Education Coordinating Board (THECB) has authority under Texas Education Code §61.031 to promulgate procedures for handling student complaints about higher education institutions.

The agency's proposed complaint procedure states that current, former, and prospective students may e-mail (to StudentComplaints@thecb.state.tx.us) or mail a completed THECB student complaint form (to be available on the agency's website) to THECB's Office of General Counsel. A non-exhaustive list of exceptions to the types of complaints handled by THECB is provided in the rules. THECB will refer complaints alleging that an institution has violated state consumer protection laws to the Consumer Protection Division of the Office of the Attorney General of Texas for investigation and resolution, and will refer complaints pertaining to a component institution in a university system to the appropriate university system for investigation and resolution. Further, if THECB determines that a complaint is appropriate for investigation and resolution by the institution's accrediting agency or an educational association such as the Independent Colleges and Universities of Texas, Inc. (ICUT), the agency may refer the complaint to the accrediting agency or educational association. However, referral to such entities does not absolve the state of its responsibilities to further address and resolve the complaint under certain circumstances.

If a student complaint concerns compliance with the statutes and rules that THECB administers and the complaint has not been referred to another entity, THECB staff will initiate an investigation. Prior to initiating an investigation, however, the student must exhaust all grievance and appeal procedures that the institution has established to address student complaints and provide documentation to THECB of such exhaustion. As part of its investigation, THECB staff will request a response from the institution and may also contact other persons or entities named in the student's complaint or in the institution's response. During its investigation, THECB staff will, in appropriate cases, attempt to facilitate an informal resolution to the complaint that is mutually satisfactory to the student and institution. In cases in which an informal resolution between the student and institution is not feasible, THECB staff shall evaluate the results of the investigation of the student complaint and recommend a course of action to the Commissioner. After receiving the staff recommendation, the Commissioner will consider the recommendation regarding the complaint and render a written determination either dismissing the complaint or requiring the institution to take specific actions to remedy the complaint. Under certain circumstances, the Commissioner can request the Board to review and decide the matter.

In addition to the proposed rules being published in the Texas Register, relevant stakeholders, including public and private institutions of higher education, university systems, accrediting agencies, and ICUT, have received copies of the proposed rules directly from THECB's Office of General Counsel for comment. Many entities, including University systems, were asked for input months ago as these rules were being developed. Suggestions were received and, in a number of instances, were incorporated into these rules. Since that activity occurred prior to publication of the final proposed rules, those suggestions are not reflected herein other than in the text of the rules themselves.

The following comments were received concerning the new sections.

Comment: The Austin Graduate School of Theology states: "[Its] only request would be that we not create unnecessary duplication. Those of us who are regionally accredited already meet the DoE standards on Student Complaint Procedures as part of our accreditation. [...] If THECB would continue to allow schools to use their complaint procedures that are already in place it would help streamline things."

Response: The THECB seeks to utilize procedures already in place while fulfilling its role in the U.S. Department of Education (ED) requirement that the State of Texas have ultimate responsibility for the student complaints process. No changes to already existing procedures that meet the ED's standards are anticipated. In proposed §1.116(b), the THECB requires "the complainant to exhaust all grievance and appeal procedures that the institution has established to address student complaints." Thus, THECB is neither creating a duplicative process nor hindering an institution's use of their ED-compliant complaint procedures. For example, if the THECB receives a complaint, determined to be under the purview of the THECB, from a student who has not exhausted the institution's established complaint procedure through no fault of the institution, then the THECB will, as indicated in proposed §1.116(b), request the complainant to exhaust the institution's procedures. If the institution is unable to resolve the complaint to the complainant's satisfaction, the complainant could then escalate the complaint by informing the THECB of the outcome and requesting THECB involvement. The THECB may act on the complaint based on relevant information such as the complaint, the associated documentation resulting from the institution's complaint process, and the institution's determination.

Comment: The Baptist School of Health Professions states: "Any private postsecondary school/College that is covered under the Texas Workforce Commission license to operate already has and is required to post the address and contact information for TWC specifically for students who wish to make a complaint. It would seem less likely that a complaint would be appropriately dealt with if it is having to go through several different agencies and in so doing create an onerous burden for the school who may have to respond to the complaint to several different agencies, THECB, TWC and potentially accrediting agencies."

Response: A complaint that is initiated by a student of a school which is operating under a Certificate of Approval falls under the purview of the Texas Workforce Commission (TWC). As such, the TWC is the ultimate authority for the State of Texas in those circumstances. However, some overlap may occur if, for example, the school has a degree program approved by the THECB as well as certain approvals from TWC. In such cases, a complaint may be initiated, in error, by a student to the inappropriate agency. However, this type of issue has been and should continue to be quickly resolved between the two agencies so that the complaint moves forward with only one agency. Likewise, a referral to other entities under proposed §1.115 would occur when indicated by the criteria given within the rule.

Comment: The Council of Arts Accrediting Associations stated: "Ideally the acceptance of a complaint by one agency while another is in the process of reviewing the same issue should be avoided. Opening a second conversation on the same topic at the same time could compromise the due process proceedings of both agencies. As well, a variance in outcomes could confuse the public. The ability to submit one complaint to multiple bodies simultaneously could promote shopping on the part of the complainant, rather than a focus on submitting the complaint to the body whose purview enables it to review the issue carefully and bring the issue to swift and appropriate conclusion." The Council of Arts Accrediting Associations also stated: "It is important that an agency accept a complaint only if the nature of the complaint falls within its purview, and it has guidelines and protocols that enable it to address the complaint with appropriate expertise."

Response: The THECB agrees and believes its proposed rules reflect as much. A complaint that is initiated by a student of a school which is operating under a Certificate of Approval falls under the purview of the Texas Workforce Commission. As such, the TWC is the ultimate authority for the State of Texas in those circumstances. However, some overlap may occur if, for example, the school has a degree program approved by the THECB as well as certain approvals from TWC. In such cases, a complaint may be initiated, in error, by a student to the inappropriate agency. However, this type of issue has been and should continue to be quickly resolved between the two agencies so that the complaint moves forward with only one agency. Likewise, a referral to other entities under proposed §1.115 would occur when indicated by the criteria given within the rule.

Comment: The Council of Arts Accrediting Associations further stated: "As Secretary-recognized bodies, our agencies must ensure autonomy in procedure and action, and the ability to operate and make decisions without external influence."

Response: As noted previously, the THECB seeks to utilize procedures already in place while fulfilling its role in the ED requirement that the State of Texas have ultimate responsibility for the student complaints process. No changes to already existing procedures that meet the ED's standards are anticipated. In proposed §1.116(b), the THECB requires "the complainant to exhaust all grievance and appeal procedures that the institution has established to address student complaints." Thus, THECB is neither creating a duplicative process nor hindering an institution's use of their ED-compliant complaint procedures. For example, if the THECB receives a complaint, determined to be under the purview of the THECB, from a student who has not exhausted the institution's established complaint procedure through no fault of the institution, then the THECB will, as indicated in proposed §1.116(b), request the complainant to exhaust the institution's procedures. If the institution is unable to resolve the complaint to the complainant's satisfaction, the complainant could then escalate the complaint by informing the THECB of the outcome and requesting THECB involvement. The THECB may act on the complaint based on relevant information such as the complaint, the associated documentation resulting from the institution's complaint process, and the institution's determination.

Comment: The Council of Arts Accrediting Associations stated: "As agencies, it would be problematic for any one of us to attempt to "modify or reject" the action of another. As noted in point 2 above, an agency should accept a complaint only if the nature of the complaint falls within its purview. This ensures that the agency has the expertise to review the complaint appropriately."

Response: The THECB's intent is to refer complaints, if at all, to a single agency or entity for handling of the complaint. Thus, we modify the proposed introductory paragraph of §1.115 to state:

"1.115. Referral of Certain Complaints to Other Agencies or Entities.

"Once the Agency receives a student complaint form, the Agency may refer the complaint to another agency or entity as follows:..."

Comment: The University of Phoenix suggests the following modification to proposed §1.115(3):

If the Agency determines that the complaint is appropriate for investigation and resolution by the institution's recognized accrediting agency, the Agency may refer the complaint to the accrediting agency. If the Agency refers the complaint to such an accrediting agency, the Agency may request the accrediting agency [shall] to send [monthly] quarterly updates in writing to the Agency regarding the status of the investigation of the complaint and shall notify the Agency in writing of the outcome of the investigation/resolution process for the complaint. The Agency shall have the right to [accept, modify, or reject] adopt any decision proposed or made or any course of action proposed or taken by the accrediting agency as the final resolution of the matter before the Agency. In the alternative, the Agency shall have the right to enter its own decision based on the investigative findings of the accrediting agency to the extent they are able to be provided. The Agency shall have the right to terminate the referral of the complaint to the accrediting agency at any time and may proceed to investigate and adjudicate the complaint. [If the Agency determines that the accrediting agency is not appropriately addressing the complaint.] Similar comments were received from The Southern Association of Colleges and Schools Commission on Colleges and are addressed below.

Response: The THECB staff agrees with the suggested language. We therefore modify proposed §1.115(3) to better reflect the intent of the rule and the THECB's role when referring a complaint to an accreditor, as follows:

If the Agency determines that the complaint is appropriate for investigation and resolution by the institution's recognized accrediting agency, the Agency may refer the complaint to the accrediting agency. If the Agency refers the complaint to such [an] accrediting agency, the Agency may request the accrediting agency [shall] to send [monthly] quarterly updates in writing to the Agency regarding the status of the investigation of the complaint and shall notify the Agency in writing of the outcome of the investigation/resolution process for the complaint. The Agency shall have the right to [accept, modify, or reject] adopt any decision proposed or made or any course of action proposed or taken by the accrediting agency as the final resolution of the matter before the Agency. In the alternative, the Agency shall have the right to enter its own decision based on the investigative findings of the accrediting agency to the extent they are able to be provided. The Agency shall have the right to terminate the referral of the complaint to the accrediting agency at any time and may proceed to investigate and adjudicate the complaint. [If the Agency determines that the accrediting agency is not appropriately addressing the complaint.]

Comment: The Southern Association of Colleges and Schools Commission on Colleges (SACSCOC) states: "The states cannot relieve an accrediting agency of its responsibilities to the Department of Education (DOE) as applies to the integrity section of the Higher Education Opportunities Act (HEOA) regulations. THECB cannot make judgments about a SACSCOC accredited institution's compliance with the SACSCOC standards if the complaint is related to our compliance issues. Although tempting, the accreditors cannot abdicate their responsibilities for this. The language makes THECB the determiner of an institution's compliance with our standards when a complaint is filed."

Response: As will be discussed in further detail below, the THECB's proposed rules are not attempting to "relieve an accrediting agency of its responsibilities to the Department of Education (DOE) as applies to the integrity section of the Higher Education Opportunities Act (HEOA) regulations." As previously noted, the THECB seeks to utilize procedures already in place while fulfilling its role in the ED requirement that the State of Texas have ultimate responsibility for the student complaints process. No changes to already existing procedures that meet the ED's standards are anticipated. In proposed §1.116(b), the THECB requires "the complainant to exhaust all grievance and appeal procedures that the institution has established to address student complaints." Thus, THECB is neither creating a duplicative process nor hindering an institution's use of their ED-compliant complaint procedures. For example, if the THECB receives a complaint, determined to be under the purview of the THECB, from a student who has not exhausted the institution's established complaint procedure, through no fault of the institution, then the THECB will, as indicated in proposed §1.116(b), request the complainant to exhaust the institution's procedures. If the institution is unable to resolve the complaint to the complainant's satisfaction, the complainant could then escalate the complaint by informing the THECB of the outcome and requesting THECB involvement. The THECB may act on the complaint based on relevant information such as the complaint, the associated documentation resulting from the institution's complaint process, and the institution's determination.

Comment: The SACSCOC states: "[The proposed rule] also makes it clear that if you refer [a complaint] and do not like our decision, you will terminate the referral for not appropriately addressing the [complaint]." The SACSCOC also stated: "If a complaint is referred to SACSCOC and further if SACSCOC determines that the complaint states facts that implicate SACSCOC Principles, then THECB does not have the right to "reject" or "modify" any decision based on those facts made by SACSCOC - regardless of whether THECB rules state it does or not."

The SACSCOC further stated: "I do not think that this process will fly with the federal government."

Response: As noted above, the THECB staff agrees with the University of Phoenix's suggested language and believes it equally applicable to the comments from the SACSCOC. We therefore modify proposed §1.115(3), to better reflect the intent of the rule and the THECB's role when referring a complaint to an accreditor, as follows:

"(3) If the Agency determines that the complaint is appropriate for investigation and resolution by the institution's recognized accrediting agency, the Agency may refer the complaint to the accrediting agency. If the Agency refers the complaint to such accrediting agency, the Agency may request the accrediting agency [shall] to send [monthly] quarterly updates in writing to the Agency regarding the status of the investigation of the complaint and shall notify the Agency in writing of the outcome of the investigation/resolution process for the complaint. The Agency shall have the right to [accept, modify, or reject] adopt any decision proposed or made or any course of action proposed or taken by the accrediting agency as the final resolution of the matter before the Agency. In the alternative, the Agency shall have the right to enter its own decision based on the investigative findings of the accrediting agency to the extent they are able to be provided. The Agency shall have the right to terminate the referral of the complaint to the accrediting agency at any time and may proceed to investigate and adjudicate the complaint. [If the Agency determines that the accrediting agency is not appropriately addressing the complaint.]"