1. State the administrative agency which controls the regulation. Explain why this agency and your proposed regulation interests you (briefly). Will this proposed regulation affect you or the business in which you are working? If so, how? Submit a copy of the proposed regulation along with your responses to these five questions. The proposed regulation can be submitted as either a separate Word document (.doc) or Adobe file (.pdf).
This means you will submit two attachments to the Week 2 Dropbox: (1) a Word doc with the questions and your answers and (2) a copy of the proposed regulation you used for this assignment. (10 points) Office of Postsecondary Education, Department of Education is the administrative agency which controls the regulation.
This agency and the regulation interest me because I am an student and I utilizes financial aid and without financial aid I will not be able to achieve my goal of achieving my ultimate goal of receiving my PhD in nursing research.
This affects me directly because I have utilized financial aid in some form since I completed my LPN in 1999 to pursue my education thus far and intend to utilize financial aid until I reach my goal of PhD in nursing. The proposal/change holds my programs accountable for the integrity of the programs and the outlook on my career potential. 2. Describe the proposal/change. (10 points)
The proposal/change improves integrity in the programs authorized under title IV of the Higher Education Act of 1965. The schools are being held accountable for the quality of their programs and the employment potential of the students. 3. Write the public comment which you would submit to this proposal. If the proposed regulation deadline has already passed, write the comment you would have submitted. Explain briefly what you wish to accomplish with your comment.
(10 points) My comment is that the proposal is great because I am an adult student and there are so many programs out there and some are not actually what they say they are or the outlook on the specific specialty or skill is not positive. The quality of some of the programs are not up to par either so requiring the ones that use federal funds be accountable makes is easier for an adult student like myself.
The only part that I have a problem with is refers to the distance learning programs for licensed professionals (nurses, social workers, etc.) requirement to report and maintain a level of job placement and the a lot of the students are already employed and It should be taken into account and not penalize the programs and the requirement individualized according to the student composition to avoid misinformation and inappropriate penalization. I think the rule should be more specific in certain areas to consider the different composition of the educational programs.
4. Provide the "deadline" by which the public comment must be made. (If the date has already passed, please provide when the deadline was). (5 points) This expires on August 2, 2010.
5. a. Once you have submitted your comment, what will you be legally entitled to do later in the promulgation process (if you should choose to do so)? (See the textbook's discussion of the Administrative Procedure Act.)
Once I have submitted my comment on a regulation during the assigned period, I legally am entitled to challenge the validity of the rules in court. An administrative rule can be challenged on several different grounds: the rule is arbitrary, capricious, an abuse of discretion or in violation of some other law; if the regulation is not supported by substantial evidence; if the agency did not comply with the APA requirements, unconstitutional or if the agency tries to change the substance and purpose of the enabling act through regulations (Jennings, 2012).
‘The five legal theories that can be used in an attempt to have the regulation declared invalid and overturned in court involve the arbitrary and capricious standard for challenging an agency action, the substantial evidence standard for challenging an agency action, the constitutional standard for challenging in agency’s action and the ultra vires standard for challenging an agency’s action. The first ground on which to challenge an agency rule is to indicate that the rule is arbitrary, capricious, an abuse of discretion or in violation of some other law.
The second ground on which to challenge an agency’s regulation applies if the regulation is unsupported by substantial evidence. The substantial evidence test is applied in the review of formal and hybrid rulemaking. The arbitrary and capricious standard simply requires some proof or basis for the regulation, substantial evidence requires that more convincing evidence exist in support of the regulation than against it.
The third ground on which to challenge an agency’s regulation involves the rule that a regulation can be set aside if the agency did not comply with the APA requirements of notice, publication, and public comment or input.
The procedures must be followed in order for the regulatory process and resulting rules to be valid. The fourth ground to challenge an agency’s regulation is to have the agency’s regulation considered to be unconstitutional is another basis for challenging a regulation. This can be carried out by challenges based on constitutional grounds dealing with regulations that give an agency authority to search records or that impose discriminatory requirements for licensing professionals.
The final ground for challenging any agency’s regulation in court is ultra vires, “beyond its powers.” An ultra vires regulation is one that goes beyond the authority given to the agency in its enabling act. Although most agencies stay clearly within their authority, if an agency tries to change the substance and purpose of the enabling act through regulations would be ultra vires (Jennings, 2012).
The challenge that would be the best way to challenge the regulation I selected if I wanted to have the regulation overturned would be to have the regulation rule declared arbitrary, capricious, an abuse of discretion or in violation of some other law because the part of the regulation that discussed the requirement for the programs to have a required amount of job placement.
The programs that I have been enrolled in for the last few years would not be able to meet that requirement and could be penalized without taking into consideration that the programs are for licensed working adults all over the world (Jennings, 2012).
b. If the proposal passes, identify and explain the five legal theories you could use in an attempt to have the regulation declared invalid and overturned in court. (will provide after homework due)
c. Which of these challenges would be the best way to challenge the regulation you selected for this assignment if you wanted to have the regulation overturned and why? (will provide after homework due)
Answer all of these questions for #5 even if you are in favor of your proposed regulation. The response to question 5 should be a minimum of 2-3 paragraphs long. (15 points)
References Jennings, M. (2012) Business: Its Legal, Ethical, and Global Environment. (9th ed). South-Western Cengage Learning: Mason, Ohio.