Attorney General's Opinion
Attorney General, Richard Blumenthal
May 25, 2001
Honorable Valerie F. Lewis
Commissioner of Higher Education
Department of Higher Education
61 Woodland Street
Hartford, CT 06105
Dear Commissioner Lewis:
You have requested our opinion of whether renewal of the certificate of authorization of a private occupational school on the basis of the school's institutional accreditation by an accrediting agency recognized by the United States Department of Education (USDOE) pursuant to Conn. Gen. Stat. §10a-22b(a), in lieu of the Connecticut Department of Higher Education's (DHE's) evaluation, effectively relieves that school of compliance with the requirements of Conn. State Ag. Regs. §10a-22k-5(f) regarding the contents and maintenance of a private occupational school's student attendance records so that the school is subject only to the student attendance record-keeping requirements, if any, of the particular USDOE recognized accrediting agency.
By way of background, a private occupational school may not operate without a certificate of authorization from the Commissioner of Higher Education. §10a-22b(a). To obtain a certificate, a private occupational school must demonstrate to the Commissioner compliance with a comprehensive array of statutory and regulatory requirements. See Conn. Gen. Stat. §§10a-22b - 10a-22c; Conn. Stat. Ag. Regs §§10a-22k-3 - 10a-22k-5. For the first three years of operation, renewal of the certificate is required annually. Conn. Gen. Stat. §10-22d. Thereafter, a renewal is granted for a period not to exceed five years and is predicated upon the school's continuing to meet the conditions of its most recent authorization. Id.
In 1997 the General Assembly added the following sentence to §10a-22b(a):
P.A. 97-138. Under this amendment, the Commissioner now must renew the certificate of authorization of a private occupational school which is accredited by a USDOE recognized accrediting agency unless the Commissioner has reasonable cause not to rely upon that accreditation, in which event the Commissioner will conduct through DHE her own evaluation of the renewal application.
You have informed us that while accrediting agencies largely maintain standards similar to those contained in state statutes and in DHE's private occupational school regulations, there are some differences. One such difference is the contents of student records. State statutes and DHE regulations require a private occupational school to maintain admission and cumulative records, which include "the attendance . . . of each student." §10a-22k-f(f)(1); see also Conn. Gen. Stat. §10a-22b(e)(6). You have informed us that, unlike DHE, many outside accrediting agencies do not require the keeping of attendance records.
The answer to your question is important not only to DHE but also to private occupational schools because it will determine the amount of federal Title IV financial aid a private occupational school may apply to the tuition charges of students who withdraw from schools prior to the completion of a semester and, by the same token, the amount of such financial aid the school must refund to the Title IV program. Generally, under federal Title IV regulations, students withdrawing from schools which are not required to take attendance may use one-half of their Title IV aid to satisfy tuition charges regardless of the length of their attendance, but students withdrawing from schools which are required to take attendance may use only a prorated portion of their Title IV aid based upon the students' actual attendance as recorded. 34 CFR §668.22. We infer from the correspondence submitted with your request that most students withdraw before the midpoint of a semester so that the absence of an attendance-taking requirement translates into more Title IV funds applicable to tuition charges and conversely, less funds to be refunded by the schools to the Title IV program.
In our opinion, §10-22b(a), as amended by P.A. 97-138, has no effect on the attendance requirement of §10a-22k-5(f). As stated above, reliance on outside agency accreditation applies only to renewals of authorization; by the statute's terms, outside agency accreditations do not apply to initial authorizations. Accordingly, an applicant applying for an initial certificate of authorization must demonstrate to a DHE evaluation team compliance with relevant statutory and regulatory requirements, including the school's maintenance of adequate records to show attendance and grades and the enforcement of standards relating to attendance and grades. Conn. Gen. Stat. §10a-22b(e)(6). That statutory requirement is reflected in §10a-22k-5(f). It makes no sense to posit that a school which is found by the evaluation team to be in compliance with our statutory and regulatory requirements and issued a certificate of compliance by the Commissioner no longer must comply with certain of those requirements once the school is accredited by a USDOE approved agency; nor does §10a-22b(a) in any way suggest that result.
Further, although §10a-22b(a) uses the verb "shall" with respect to acceptance of institutional accreditation for renewals, the Commissioner is not bound to accept such an accreditation for renewal purposes in each and every instance. The use of the word "shall" does not invariably impose a mandatory duty on the Commissioner because statutes must be construed as a whole to ascertain the legislature's intent. State ex rel Arcudi v. Iassogna, 165 Conn. 203, 204 (1973); International Brotherhood of Teamsters v. Shapiro, 138 Conn. 57, 67 (1951). The operative language of §10a-22b(a) also contains the proviso, "unless the commissioner finds reasonable cause not to rely upon such accreditation,&quo; thereby giving the Commissioner discretion to decline to accept such accreditation in certain situations. While the concept of "reasonable cause" is undefined by the statute and therefore, must be determined on a case-by-case basis by the Commissioner, this concept undoubtedly encompasses situations in which DHE possesses independent information that a school may not be in compliance with Connecticut's statutes and regulations and therefore, DHE itself needs to evaluate the school's renewal application.
Finally, regardless of whether a private occupational certification is renewed by direct DHE action or by acceptance of outside accreditation under §10a-22b(a), the Commissioner still maintains the power to revoke the certification on a number of grounds including "ceas[ing] to meet the conditions of its authorization . . . [and] . . . committ[ing] a material or substantial violation of sections 10a-22a to 10a-22k, inclusive." Conn. Gen. Stat. §10a-22f(a). Since, as pointed out above, §10a-22b(e)(6) explicitly makes maintenance of attendance records and enforcement of attendance standards conditions of authorization, a school's failure to comply with such requirements could amount to material violations of §10a-22b and therefore, grounds for revocation.1
In sum, a statute must be read to avoid bizarre results; State v. Campbell, 180 Conn. 557, 563 (1983); Kron v. Thelen, 178 Conn. 189, 192 (1979); and to attain a rational and sensible result which bears most directly on the object which the legislature sought to obtain. United Aircraft v. Fusari, 163 Conn. 401, 414 (1972). It follows that the renewal of a private occupational school's authorization on the basis of the Commissioner's acceptance of the institutional accreditation by a USDOE recognized accrediting agency does not relieve a private occupational school of its obligation to comply with applicable statutes and DHE regulations. Otherwise, the bizarre result of Connecticut private occupational schools being subject to different standards of operation, depending solely upon the sources of renewal of their certificates of authorization, would ensue. With respect to attendance records, such a result would be contrary to §10a-22k-14, which requires schools to apply their "reasonable and equitable" refund and cancellation policies "uniformly."
Very truly yours,
RICHARD BLUMENTHAL
ATTORNEY GENERAL
Bernard F. McGovern, Jr.
Assistant Attorney General
RB/BFM/sad
1Conn. Gen. Stat. § 10a-22i(a) authorizes the Commissioner also to assess a maximum penalty of $500 per day against a school which violates §§10a-22a-10-22k.