ESC-43-11-00020-A Participation in the Tuition Assistance Program (TAP)
1/4/12 N.Y. St. Reg. ESC-43-11-00020-A
NEW YORK STATE REGISTER
VOLUME XXXIV, ISSUE 1
January 04, 2012
RULE MAKING ACTIVITIES
HIGHER EDUCATION SERVICES CORPORATION
NOTICE OF ADOPTION
I.D No. ESC-43-11-00020-A
Filing No. 1383
Filing Date. Dec. 20, 2011
Effective Date. Jan. 04, 2012
Participation in the Tuition Assistance Program (TAP)
PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
Action taken:
Addition of Parts 2400-2411 to Title 8 NYCRR.
Statutory authority:
Education Law, sections 655(4) and 661(4)
Subject:
Participation in the Tuition Assistance Program (TAP).
Purpose:
To implement part Z of chapter 58 of the Laws of 2011.
Substance of final rule:
I. Subchapter A. Administration.
A. Part 2400. General Purposes and Definitions.
Section 2400.1. General Purpose. This section sets forth the New York State Higher Education Services Corporation's (Corporation) statutory purpose, which includes awarding Tuition Assistance Program (TAP) awards consistent with Education Law § § 661(4)(b) and 661(4)(b-1).
Section 2400.2. Definitions. This section sets forth the meanings of various terms used in new Chapter XXII.
B. Part 2401. Public Access to Records.
Section 2401.1. Duties of Records Access Officer. This section states that the records access officer shall have all the duties defined in Section 2002.2 of Subchapter A of Chapter XX of Title 8 of the NYCRR.
Section 2401.2. Availability of Records.
This section sets forth the process by which the public may request public records of the Corporation consistent with the Freedom of Information Law.
Section 2401.3. Appeals.
This section sets forth the process by which a person denied access to records may appeal such decision consistent with the Freedom of Information Law.
Section 2401.4. Personal Privacy Protection.
This section sets forth the requirements regarding the maintenance of personal records by the Corporation and the process by which a person may access or correct his or her record consistent with the Personal Privacy Protection Law.
C. Part 2402. Procedures for Declaratory Ruling.
Section 2402.1. Petition for Declaratory Ruling.
This section sets forth the process for obtaining a declaratory ruling from the Corporation regarding the statutes, rules, and regulations enforced by the Corporation.
D. Part 2403. Hearing Procedures.
Section 2403.1. Hearings.
This section sets forth the manner in which parties are notified of hearings in connection with adjudicatory proceedings.
Section 2403.2. Record.
This section sets forth the contents of the record in an adjudicatory proceeding.
Section 2403.3. Presiding Officers.
This section sets forth who can be designated as a presiding officer to conduct hearings in adjudicatory proceedings.
Section 2403.4. Powers of Presiding Officer.
This section sets forth the powers of the presiding officers.
Section 2403.5. Disclosure.
This section authorizes the presiding officer to provide for discovery in a manner appropriate to the proceeding.
Section 2403.6. Evidence.
This section sets forth the scope of the rules of evidence to be used during an adjudicatory proceeding.
Section 2403.7. Decisions, Determinations and Orders.
This section sets forth the content and delivery of decisions, determinations and orders upon conclusion of an adjudicatory proceeding.
Section 2403.8. Representation.
This section sets forth the right of a person appearing before the corporation to be accompanied by counsel or other representation.
E. Part 2404. Suspension and Limitation of Awards Participation.
Section 2404.1. Possible Sanctions.
This section sets forth the penalties which may be imposed as a result of a violation of applicable laws, regulations or agreements.
Section 2404.2. Procedures.
This section sets forth both informal and formal procedures for addressing suspected violations of applicable laws, regulations, agreements or limitations.
Section 2404.3. Application for Reinstatement.
This section sets forth the process for requesting reinstatement of eligibility to participate in the award program after a final adverse decision has been issued by the corporation.
Section 2404.4. Causes for Formal Sanctions.
This section sets forth the grounds for the limitation, suspension or termination of an educational institution's eligibility to participate in the award program.
F. Part 2405. Recovery of Refunds and Overpayments.
Section 2405.1. Remedies.
This section sets forth the different repayment arrangements available in connection with a refund and/or overpayment owed from a student or educational institution.
Section 2405.2. Grounds for Recovery.
This section sets forth the circumstances under which a student and an educational institution would owe a refund or overpayment.
Section 2405.3. Procedures.
This section sets forth the procedures for notifying a student and an educational institution that a refund or overpayment is owed to the corporation, including the right to dispute the demand and the right to a hearing on the matter.
G. Part 2406. Special Administrative Relief Provisions.
Section 2406.1. Eligibility for Further Financial Aid After Default.
This section mirrors section 2008.1 of Subchapter A of Chapter XX of Title 8 of the NYCRR regarding what is required of an applicant in order to receive TAP if that applicant is in default on a student loan, TAP overpayment or is out of compliance with the terms and conditions of any other State award.
II. Subchapter B. Tuition Assistance Awards for Additional Participants.
A. Part 2407. Student Eligibility Criteria.
Section 2407.1. Student Eligibility Criteria.
This section sets forth the specific criteria a student must satisfy in order to be eligible for an award as contained in sections 661(4)(b-1) of the Education Law. This section also sets forth the general criteria a student must satisfy in order to be eligible for an award.
B. Part 2408. Tuition Assistance Program Awards.
Section 2408.1. Eligibility Criteria and Award Limitations.
This section sets forth the award limitations based on the applicant's income.
Section 2408.2. Adjustments to Income.
This section sets forth the adjustments to the income information reported that may be made based on certain specified criteria.
Section 2408.3. Financial Independence of Applicants.
This section sets forth the criteria that must be established in order for an applicant to demonstrate financial independence and exclude the income of his/her parents in the computation of an award.
Section 2408.4. Exclusion of Income of Parent or Spouse.
This section sets forth the criteria that must be established for a dependent applicant to exclude the income of a parent or spouse in the computation of an award.
Section 2408.5. Tax Dependents.
This section sets forth when an applicant shall be considered to have tax dependents for purposes of determining the schedule under which an applicant shall be paid.
Section 2408.6. Full Time Study.
This section sets forth the period of attendance that constitutes full time study.
Section 2408.7. Academic Requirements; Program Pursuit and Academic Progress.
This section sets forth the academic requirements required to receive an award.
Section 2408.8. Registration of Postsecondary Curricula.
This section requires that every curricula be registered subject to the requirements of the Corporation.
Section 2408.9. Standards for the Registration of Curricula.
This section provides that the standards for the registration of curricula be established by the Corporation.
Section 2408.10. Procedures on Denial of Reregistration.
This section sets forth the procedures for an educational institution to appeal a decision denying its registration of an existing curriculum.
Section 2408.11. Procedures on Denial of Initial Registration.
This section sets forth the procedures for an educational institution to appeal a decision denying its registration of a proposed curriculum.
Section 2408.12. Information to be Provided.
This section sets forth the information an educational institution is required to provide students regarding financial assistance, and other related aspects of the educational institution, available to them.
Section 2408.13. Approved Programs for Tuition Assistance Awards.
This section establishes the approved programs for the award program.
Section 2408.14. Matriculated Status.
This section sets forth the requirements to achieve a matriculated status, which is required to receive an award.
Section 2408.15. In-State Study.
This section sets forth the requirements for in-state study and the criteria that must be satisfied in order to be eligible for an award when studying outside the State.
Section 2408.16. Educational Fees.
This section sets forth the specific fees considered educational fees for purposes of student aid.
Section 2408.17. Limitation of Amount of Award.
This section sets forth other assistance considered duplicative, and therefore would result in a limitation, of an award pursuant to sections 661(4)(b) and 661(4)(b-1) of the Education Law.
Section 2408.18. Administration of Ability-to-Benefit Tests for Purposes of Eligibility for Awards.
This section sets forth the requirements in connection with ability-to-benefit tests in order to be eligible for an award.
C. Part 2409. Duration of Eligibility.
Section 2409.1. Duration of Eligibility.
This section sets forth the number of years a recipient is eligible to receive an award based on his/her program of study.
Section 2409.2. Partial Payments.
This section sets forth the circumstances under which a partial payment would be made.
D. Part 2410. Applicant, Institutional, and Accrediting Agency Responsibilities.
Section 2410.1. Generally.
This section provides that the applicant and the institution are responsible for the accuracy of the information provided to, and relied upon by, the corporation.
Section 2410.2. Applicant Responsibility.
This section sets forth the information the applicant must provide to the corporation.
Section 2410.3. Institutional Eligibility and Responsibility.
This section sets forth specific criteria an educational institution must satisfy in order to be eligible for an award as contained in sections 661(4)(b) of the Education Law. This section also sets forth the information the educational institution must provide to the corporation. This section also requires educational institutions to enter into a participation agreement with the corporation. This section also sets forth the educational institution's responsibilities under the award program.
This section sets forth that the accrediting agency must comply with all laws and regulations governing the award program. This section also sets forth the information the accrediting agency must provide to the corporation.
Section 2410.5. Audit.
This section sets forth the comptroller's authority to audit institutional adherence to the statutes, rules and regulations governing the award program.
E. Part 2411. Payment of Awards.
Section 2411.1. Payment.
This section sets forth the methods of payment.
Section 2411.2. Payment Terms.
This section sets forth the terms of study under which payment will be made.
Section 2411.3. Methods of Payment.
This section details each method of payment.
Final rule as compared with last published rule:
Nonsubstantial changes were made sections 2400.1(c), 2400.2(v), 2405.2(a)(4), 2407.1(a)(7), 2408.6(a), 2408.7, 2408.12(d)(5), 2408.13(b)(1), (2), 2408.15, 2408.18(a), (c)(1), (2), 2410.5 and 2411.2(b).
Text of rule and any required statements and analyses may be obtained from:
Cheryl B. Fisher, Higher Education Services Corporation, 99 Washington Ave., Rm. 1315, Albany, NY 12255, (518) 474-5592, email: regcomments@hesc.org
Revised Regulatory Impact Statement, Regulatory Flexibility Analysis, Rural Area Flexibility Analysis and Job Impact Statement
Changes made to the last published rule do not necessitate revision to the previously published RIS, RFA, RAFA, and JIS.
Assessment of Public Comment
The New York State Higher Education Services Corporation (HESC) is authorized, pursuant to New York State Education Law § 655(4) and § 661(4), to adopt rules and regulations implementing changes to the Tuition Assistance Program (TAP).
HESC received comments following the October 26, 2011 publication of the ‘Notice of Proposed Rulemaking' in the State Register. All comments received are considered and discussed below.
1. General Purposes [8 NYRCRR § 2400.1(c)]
Comment: The regulation provides that students who are enrolled in a program registered by the commissioner pursuant to part 52 of this Title shall not be eligible for awards under this Chapter. Since this requirement is not contained in the statute, this provision of the regulation goes beyond the statute regarding the new TAP program. Therefore, the language of the regulation should be changed to comport with the law.
Response: HESC will amend the regulation to specify that such students are ineligible for awards under this Chapter unless such program is ineligible for tuition assistance program awards under the regulations of the commissioner.
2. General Purposes [8 NYCRR § 2400.1(c)]
Comment: This section makes reference to Part 52 of the Commissioner's regulations. Part 52.2(e)(6) requires schools to maintain a permanent, complete, accurate, and up-to-date transcript of student achievement at the institution. This requirement is important because the student transcript is the basis for measuring compliance with the full-time study, good academic standing, approved program, etc. requirements of the law and regulations.
Because it is not clear whether the requirements of Part 52 apply to section 661(4)(b) schools, we recommend that the requirement to maintain a permanent, complete, accurate, and up-to-date transcript of student achievement expressly be made to apply to 661(4)(b) schools pursuant to Section 2408.9 of the regulations.
Response: Section 2408.9 of the regulation provides that the standards for the registration of curricula shall be established by the corporation. HESC will include the requirement that the schools maintain a permanent, complete, accurate, and up-to-date transcript of student achievement at the institution. No change to the regulation is necessary.
3. Definitions [8 NYCRR § 2400.2(v)]
Comment: This provision contains a typographical error; it repeats the phrase "shall mean."
Response: HESC will correct the error.
4. Grounds for Recovery [8 NYRCRR § 2405.2(a)(4)]
Comment: This section addresses student and institutional responsibility for refunding certain awards to the State. Because it appears to assign greater financial responsibility for refunds to students receiving funding under Chapter XXII than to students receiving funding under Chapter XX, we suggest that HESC consider including only "and 2407.1(a)(5)" in section 2405.2(a)(4) in order to remove the apparent disparity.
Response: HESC will make the change.
5. Full-Time Study [8 NYCRR § 2408.6(a)]
Comment: This section defines full-time study as enrollment in 12 semester hours or the equivalent. SED's Memorandum to Chief Executive Officers No. 86-17 states that: "basic to the payment of State student aid is the requirement that courses that make up a student's minimum course load be creditable toward the degree, diploma or certificate program in which the student is enrolled."
Since section 661(4)(b) schools do not appear to be subject to SED Memorandum to Chief Executive Officers No. 86-17, not to mention other requirements set forth in guidance issued by SED, Section 2408.6(a) needs to be amended to provide that full-time students must enroll in at least 12 semester credits that are creditable toward the student's degree. We also recommend the following language: "However, courses taken solely to meet teacher certification, licensing, or other external requirements, as well as courses not creditable toward the student's program of study, shall not contribute to full-time study."
Response: HESC will make the change.
6. Academic Requirements; Program Pursuit and Academic Progress [8 NYCRR § 2408.7]
Comment: This section addresses Academic Requirements; Program Pursuit and Academic Progress. We have several suggested amendments to this section.
First, the provisions contained in this section do not appear to flow logically. To correct this, we suggest moving the requirements for Program Pursuit [2408.7(b)] and Satisfactory Academic Progress [2408.7(c)] ahead of the definition for loss of good academic standing [2408.7(a)(1) and 2408.7(a)(2)].
Then, since subdivision 2408.7(a) sets forth the requirements for "good academic standing," we suggest that its opening language be changed from "Full-time academic study requirements" to "Good academic standing requirements."
Finally, we suggest that Section 2408.7(a)(2)(i) be deleted and replaced with Section 2408.7(f), in order to clarify how a student can regain TAP eligibility. As currently written, Section 2408.7(a)(2)(i) may lead a reader to believe that a student who has lost good academic standing in a fall term because his or her cumulative grade point average was too low, merely has to enroll in the following spring term and bring his or her cumulative grade point average up to the required level to be restored to good academic standing.
Response: HESC will make these changes.
7. Information to be Provided [8 NYCRR § 2408.12(d)(5)]
Comment: The regulation provides that schools shall provide information about faculty listed by rank with the degree held. It will be difficult for some of the eligible schools to "rank" faculty members because of the different backgrounds and schooling of the instructors. In addition, all members of the faculty have credentials, but not all have degrees that are recognized by the State Education Department. Therefore, the text should be changed to enable all eligible schools to comply with this requirement.
Response: HESC will make this change.
8. Approved Programs for Tuition Assistance Program Awards [8 NYCRR § 2408.13(b)(1)]
Comment: The regulation provides that approved programs are defined as collegiate programs, registered by the corporation, leading to a degree or diploma fully creditable towards a degree in an institution authorized to grant degrees. As written, it can easily be interpreted to mean that only those institutions authorized to grant degrees by the State Education Department can participate in these programs, whereas the clear intent of the legislature was that schools authorized by a national accrediting agency recognized by the United States Department of Education to grant degrees shall participate. The wording needs to be changed to clarify this important point.
Response: HESC will make this change.
9. Approved Programs for Tuition Assistance Program Awards [8 NYCRR § 2408.13(b)(2)]
Comment: The regulation provides that approved diploma programs shall be of at least one academic year's duration. The enabling statute, as well as other sections of the regulation, provides that the educational institution must provide a program of instruction lasting at least three years.
Response: HESC has amended this provision to reflect that approved diploma programs shall be of at least three academic years' duration.
10. In-State Study and Study Abroad [8 NYCRR § 2408.15]
Comment: The majority of students who will be eligible for awards under Chapter XXII choose to study abroad for at least one year and many for two years. In addition, many of these students who go abroad attend institutions that do not as of yet have formal arrangements with a NYS institution, many do not necessarily return to the NY school they originally enrolled, and many of them do not even return to NY to complete their education here. Under the current language, a large number of foreign schools will formally affiliate with NY schools and a large percentage of the new TAP funding would go to students studying abroad. This was not the intent of the legislation and therefore the regulation should be amended to ensure that only already existing, well established, formal study abroad programs that are directly connected to, and an integral part of, NY schools are eligible for TAP.
Response: HESC, through its administration of the program, and the Office of the State Comptroller, through its audits, will ensure that students enrolled in study abroad programs meet all the requisite requirements for TAP awards under this Chapter. HESC will amend the regulation to authorize the corporation to establish standards to ensure such requirements are met.
11. Administration of Ability-to-Benefit Tests for Purposes of Eligibility for Awards [8 NYRCRR § 2408.18(a)]
Comment: The regulation provides that this section establishes the criteria the Commissioner will utilize to determine whether an approved ability-to-benefit test is independently administered. Other sections of the regulation, as well as other subdivisions of this section, provide that HESC's President will establish such criteria.
Response: HESC has amended this provision to reflect that the President, rather than the Commissioner, will establish the criteria to be utilized to determine whether an approved ability-to-benefit test is independently administered and evaluated.
12. Administration of Ability-to-Benefit Tests for Purposes of Eligibility for Awards [8 NYRCRR § § 2408.18(e)(1)(ii)(c)]
Comment: This section addresses the verification of student identity when taking ability-to-benefit tests. We recommend that HESC establish a practice that requires schools to retain the sign-in records.
Response: HESC will include this requirement in connection with the administration of ability-to-benefit tests. No change to the regulation is necessary.
13. Institutional Eligibility and Responsibility [8 NYCRR § 2410.3(g)(iv)]
Comment: This provision would in effect allow the schools to each establish the length of time it intends to maintain the records that demonstrate the eligibility of its TAP award recipients. Since schools may establish time frames that are adverse to our audit interests, we suggest that HESC establish a standard minimum record retention period with respect to these records. It is our understanding that HESC currently has a practice of requiring schools to retain these records for a minimum of 7 years. We suggest that HESC be consistent and apply this practice to 661(4)(b) schools as well.
Response: HESC will include this requirement consistent with current practice. No change to the regulation is necessary.
14. Audit [8 NYCRR § 2410.5]
Comment: This provision concerns OSC's role with respect to auditing these schools' compliance with the TAP laws, rules and regulations to which they would become subject upon their participation in the Program.
As presently drafted, the provision does not recognize OSC's express statutory audit responsibility with respect to TAP payments. The Comptroller is required to audit schools' compliance with the requirements of TAP pursuant to Education Law § 665(3)(b). We therefore recommend that the proposed regulations track the statutory language which is set forth below:
"The comptroller shall audit institutional adherence to the statutes, rules and regulations governing general and academic performance awards and shall be responsible for determining the amount, if any, owed to the state by an institution which amount represents overpayment to the institution on a student's behalf. The comptroller shall report cases of suspected willful and knowing institutional violation of such statutes, rules or regulations to the district attorney in the county in which such institution is located."
Response: HESC will make the change.
15. Education Law - Section 661(4)(f)
Comment: This section of law requires TAP recipients to be either high school graduates, have the equivalent or successfully pass an approved ability to benefit test.
HESC's website states that: "To be acceptable, the certificate of graduation or high school diploma must be from a secondary school that is recognized, authorized or approved by the state educational entity having jurisdiction." In September 2011, SED advised an OSC audit team that a diploma from a nonregistered high school cannot be viewed as a high school diploma for TAP eligibility unless the school district superintendent indicates that the nonregistered school program is equivalent to that of the registered schools. This requirement however, is not contained in law or regulation.
Based upon the foregoing HESC and SED guidance, OSC auditors now require evidence of a determination that nonregistered high schools from which TAP recipients have graduated are equivalent to registered high schools in order to conclude that the graduation standard has been met.
Because students in section 661(4)(b) schools may be graduates of nonregistered high schools, we recommend that the proposed regulations or other HESC guidance clarify the requirements with respect to this issue. Absent such clarification, schools may be unaware of this requirement and as a result could face significant audit disallowances.
Response: HESC will amend sections 2407.1(a)(7), 2408.18(c)(1), and 2408.18(c)(2) of the regulation to provide that the certificate or diploma of graduation must be satisfactory to the president.
16. Payment Terms [8 NYCRR § 2411.2(b)]
Comment: It is required that an academic year be a minimum of 30 weeks. This provision should clarify this requirement.
