Bureau for Private Post-Secondary Education Sunset Review Postponed

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By Mackenzie McCoy

On December 01, 2019, the Bureau for Private Post-Secondary Education (BPPE) published its Sunset Review Report, which precedes the Sunset Review Oversight hearing on the agency before the Assembly Business and Professions Committee and the Senate Business, Professions and Economic Development Committee. Initially, the Bureau’s enabling Act, section 94800, et seq. of the Education Code, was scheduled to “sunset” (suffer the repeal of the statute or of the person(s) assigned the governing role) on January 01, 2021, pursuant to section 94950 of the Education Code if not extended as part of the sunset review process. [25:2 CRLR 117–119] Due to the COVID-19 pandemic, the Sunset Review hearing was postponed to March 2021, then later given a 1-year extension to January 01, 2022, in SB 1474 (Committee on Business, Professions, and Economic Development) (Chapter 312, Statutes of 2020). [26:2 CRLR 158–161] Then on October 5, 2021, the agency was further extended by one year to January 01, 2023 (see SB 802 (Roth) (Chapter 552, Statutes of 2021) (California Private Postsecondary Act of 2009).

The process of Sunset Review allows the Department for Consumer Affairs (DCA) and all other interested parties to review BPPE’s performance and advise on advisable or required improvements.  BPPE must also advocate for the continuation of its existence and demonstrate its effectiveness as a regulatory body in order to obtain another (normal) four-year extension on its Sunset Review. BPPE’s Sunset Report outlines the measures that have been taken in response to the issues raised by the legislature at the Bureau’s last Sunset Review in 2016.

In preparation for the since postponed Sunset Review, the Bureau released a background paper that identified  major issues, as well as background and recommendations for BPPE. One major identified issue is language in the California Private Postsecondary Act (Act) that could create loopholes and exemptions to allow an institution to become accredited despite failing required criteria.  The Bureau’s Report suggests closure of these loopholes by amending the Act to clearly specify criteria for accreditation (Issue #6). In SB 802, the author amends the existing Act by altering the definitions of specific words in order to reduce the ambiguity of what “classifications institutions are allowed to use to describe their programs, making it clear that anything outside” of the definition provided cannot be described with terms allowing inconsistent or untrustworthy descriptors.

This bill will redefine terms such as “continuing education” to exclude degree-granting instruction and will redefine “educational program” to exclude any programs that involve less than 32 hours of instruction and are not designed to lead to employment. The bill would also change the definition of “postsecondary education” by replacing the word “curriculum” with the word “instruction.” Those in support of this bill argue that enrollments at post-secondary institutions are likely to increase, and so it is important that BPPE has the authority and capacity to protect students and carry out its other responsibilities. By changing these definitions, supporters of the SB 802 believe that this language will help to strengthen the Bureau’s authority. The bill will allow BPPE to make improvements to its enforcement mechanisms, allowing it to better protect consumers against fraud and ethical breaches by the institutions that it oversees.

BPPE is particularly concerned with its previous lack of capacity to take formal disciplinary action against institutions that violate the Act (Issue #11). Previously, the Act and Education Code section 94937 allowed BPPE to take action against an institution by placing them on probation or revoking their approval to operate if its action has resulted in the harm of a student. However, historically the Office of the Attorney General has rejected these claims because they required that BPPE must demonstrate that the student suffered actual harm. SB 802 as amended October 05, 2021, amends section 94937 to allow BPPE to take disciplinary action based on potential harm.

Another major goal of BPPE is to alter the Annual Fee Structure in order to remain solvent. The act allows for BPPE to make these substantive changes that may affect an institution’s ability to operate in order to achieve comparative equity among its licensed institutions and to ensure that they are complying with federally mandated requirements relevant to certain financial aid programs are concerned. Supporters of the bill have stated that, in addition to increasing the Bureau’s enforcement power and strengthening the language of the bill itself, it is crucial that BPPE be given enough funding to carry out its responsibilities. While there is no clear mention of the Bureau’s budget in SB 802, the floor analysis references the agency’s background paper and asserts that the dire current financial predicament of BPPE precludes effective sustenance.  While the budget not directly at issue here, as a practical matter, it cannot be ignored and underlies any effective future role for the agency and its enabling statute’s efficacy.

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