19 TAC §1.115
The Texas Higher Education Coordinating Board (Coordinating
Board) adopts an amendment to §1.115, concerning Referral of
Certain Complaints to Other Agencies or Entities, with changes to
the proposed text as published in the March 22, 2013, issue of the
Texas Register
(38 TexReg 1948). Specifically,
this section requires that the Coordinating Board refer student complaints
it receives pertaining to a component institution in the University
of Texas System, Texas A&M University System, the University of
Houston System, the University of North Texas System, the Texas Tech
University System, or the Texas State University System to the appropriate
university system for investigation and resolution. Student complainants
have raised concerns that such mandatory referrals may lead, in certain
cases, to potential conflicts in the complaint being fairly resolved.
The amendment would provide THECB with discretion in making these
referrals.
The following comments were received concerning the amendments.
Comment 1: The University of Texas at Austin expressed concern
that the proposed rule may create ambiguity and confusion. Specifically,
they indicated that this rule change may leave the institution without
a clear understanding of the status of a student complaint as the
proposed rule does not expressly state that notice must be provided
to an institution when a student complaint has been filed. Likewise,
they expressed concern that the rule does not indicate that the institution
would be given an opportunity to respond or participate in the investigation
of or otherwise participate in the resolution of the student complaint.
Accordingly, while their preferred method would be to have the student
complaint referred directly to UT System or to the institution as
appropriate, UT Austin requested that, as an alternative, the rule
be amended to require that an institution that is the subject of a
complaint receive timely notice of the complaint and that a process
for institutional input and participation in the investigation and
resolution be established in the Administrative Code.
Staff Response: Staff agree that the appropriate university system
should be provided notice when THECB receives a complaint pertaining
to an institution in the system regardless of whether the complaint
is referred to the system, unless in the unlikely event, as set forth
in Texas Education Code (TEC) §61.031, such notice would jeopardize
an undercover investigation. THECB has amended §1.115(2) accordingly
and as consistent with the language of TEC §61.031(c). Through
being informed of the status of the investigation, the system will
be able to provide input and participate in the investigation and
resolution of the complaint.
Moreover, §1.116, Agency Investigation of Student Complaint,
provides that any complainant must first exhaust all grievance and
appeal procedures that an institution establishes. It is feasible
that this could involve the institution's university system. It also
provides that THECB staff, as appropriate (e.g., the complaint is
not frivolous on its face), will request a written response to the
complaint from the institution. Along with a request for response,
the agency will transmit to the institution a copy of the student
complaint form and any attachments thereto. The institution has thirty
days from receiving the request for response to provide a written
response to the complaint. Agency staff, in its discretion, may contact
the institution to obtain additional information upon the Agency's
receipt of the institution's response or at any time during the investigation
of the complaint. With the above referenced amendment to §1.115(2),
for those complaints the THECB does not refer to a university system,
the system can have input into the investigation on its own as well
as through the responses provided by one of its component institutions.
Comment 2: The University of North Texas System and its component
institutions, the University of North Texas, the University of North
Texas Health Science Center, and the University of North Texas at
Dallas ("UNT System") asserted that THECB does not have statutory
authority to investigate and resolve student complaints filed by UNT
System students. Rather, the UNT System indicated that the UNT System
Board of Regents is solely responsible for investigating complaints
filed by UNT System students and for resolving such complaints.
Staff Response: Staff does not concur that the proposed change
to the student complaint rules conflict with THECB's statutory authority
under TEC §61.031. The U.S. Department of Education promulgated
Program Integrity regulations which require each state to have a "process
to review and appropriately act on complaints concerning higher education
institutions including enforcing applicable State laws" in order for
the institution to be legally authorized by the state and be eligible
for federal Title IV funds. See 34 CFR §600.9(a)(1). Accordingly,
in June 2011, THECB asked for an opinion from the Texas Attorney General's
Office as to whether TEC §61.031 granted THECB appropriate statutory
authority to establish a state higher education complaint procedure
that complied with the Program Integrity regulations. See RQ-0982GA
(June 24, 2011). The Texas Attorney General opined that TEC §61.031
did provide THECB such statutory authority. Specifically, as explained
in his December 22, 2011 opinion:
"[T]he Texas Legislature granted [THECB] authority to investigate,
'tak[e] action other than to investigate,' resolve, and close the
file on a complaint. Based on this broad grant of authority to [THECB],
we conclude that [THECB] has authority to 'appropriately act on' complaints,
as [the U.S. Department of Education] regulations require."
Op. Tex. Att'y Gen. No. GA-0902 (2011) (internal citations omitted).
As the U.S. Department of Education explained in a "Dear Colleague"
Letter regarding state authorization:
"Question 13: For purposes of acting on complaints, would a governing
board that has oversight of multiple institutions as part of a State
university system satisfy the requirement that a complainant have
access to a process that is independent of any institution?
"Answer 13: As stated in the preamble to the final regulations,
'The State is not permitted to rely on institutional complaint and
sanctioning processes in resolving complaints it receives as these
do not provide the necessary independent process for reviewing a complaint.
A State may, however, monitor an institution's complaint resolution
process to determine whether it is addressing the concerns that are
raised within it.' A State may rely on a governing board or central
office of a State-wide system of public institutions if the State
has made the determination the governing board or central office is
sufficiently independent to provide successful oversight of complaints
for the institutions in that system." (Emphasis added.)
"Dear Colleague" Letter from U.S. Department of Education Office
of Postsecondary Education, Subject: Implementation of Program Integrity
Regulations (March 17, 2011) (internal citations omitted).
Several student complainants have raised concerns that mandatory
referrals to university systems of their complaints relating to a
component institution lead to potential conflicts in the complaint
being fairly resolved. Accordingly, the proposed rule change would
provide THECB with discretion to investigate complaints or to refer
them to university systems. Staff have determined that the THECB rule
is consistent with Op. Tex. Att'y Gen. No. GA-0902 (2011) as well
as the U.S. Department of Education's guidance on the Program Integrity
regulations.
No additional changes were made as a result of these UNT System
comments.
The amendment is adopted under Texas Education Code §61.031,
which provides the Coordinating Board with the authority to establish
policies and procedures relating to complaint investigation and resolution; §61.028,
which provides that the Board can delegate these responsibilities
to the Commissioner; and §61.027, which provides the Coordinating
Board with the authority to adopt and publish rules and regulations
to effectuate the provisions of Texas Education Code, Chapter 61.
§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:
(1)
Complaints alleging that an institution has violated
state consumer protection laws, e.g., laws related to fraud or false
advertising, shall be referred to the Consumer Protection Division
of the Office of the Attorney General of Texas for investigation and
resolution.
(2)
Complaints pertaining to an institution in the
University of Texas System, Texas A&M University System, University
of Houston System, University of North Texas System, Texas Tech University
System, or Texas State University System may be referred to the appropriate
university system for investigation and resolution. If a complaint
is not referred to a university system for investigation and resolution,
the Agency will notify the system, at least quarterly until final
disposition of the complaint, of the status of any investigation unless
the notice would jeopardize an undercover investigation.
(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
to send 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 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.
(4)
If the Agency determines that the complaint is
appropriate for investigation and resolution by an educational association
to which the institution belongs, the Agency may refer the complaint
to the educational association. If the Agency refers the complaint
to such an educational association, the educational association shall
send monthly 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 any decision proposed or made or any course of action proposed
or taken by the educational association. The Agency shall have the
right to terminate the referral of the complaint to the educational
association if the Agency determines that the educational association
is not appropriately addressing the complaint.
This agency hereby certifies that the adoption
has been reviewed by legal counsel and found to be a valid exercise
of the agency's legal authority.
Filed with the Office
of the Secretary of State on April 30, 2013.
TRD-201301710
Bill Franz
General Counsel
Texas Higher Education Coordinating Board
Effective date: May 20, 2013
Proposal publication date: March 22, 2013
For further information, please call: (512) 427-6114