Print this Article | Send to Colleague
Federal Updates
On October 9, 2020, the Department of Education (the “Department”) posted an Electronic Announcement announcing the rescission of and replacement for the 2016 Handbook for Campus Safety and Security Reporting. Through this announcement, the Department is rescinding the guidance in the 2016 Handbook and replacing it with a Clery Act Appendix to the Federal Student Aid (FSA) Handbook. The electronic announcement identifies and explains the significant changes between the 2016 edition and the new Clery-related Appendix. The Department anticipates that this rescission and publication of the new Appendix will help simplify Clery compliance.
In the announcement, the Department explained that much of the 2016 guidance provided was outside of the scope of the relevant statutory (20 U.S.C. 1092) and regulatory (34 CFR 668.41 and 668.46) authority. As a result, the Department is eliminating guidance that extended beyond the statutory and regulatory requirements. Importantly, the rescission will not retroactively apply to previous Department determinations regarding Clery Act violations, fines, enforcement actions, or any other related actions by the Department.
The Department highlighted the following list of significant changes to the 2016 edition that are found in the new Appendix.
• Clery Geography –
For many institutions, determining what does – and does not – constitute Clery geography can be very difficult. While Chapter 2 of the 2016 edition attempts to clarify some of the details, it may have expanded the definition beyond the intent and authority of the legislation and resulted in confusion and unhelpful over-reporting. The revised language applies the specific regulatory requirements and attempts to provide clarity, without additional requirements, to terms defined in 34 CFR 668.46(a).
• Clery Crimes –
The new Appendix has deleted all definitions for Clery crimes from Chapter 3 of the 2016 edition and replaced them with references to the appropriate regulatory-defined sources at 34 CFR 668.46(c)(9) and Appendix A to subpart D of part 668. The explanations, summaries, and examples provided may have, at times, created misperceptions and confusion for institutions attempting to properly interpret and apply the definitions.
• Campus Security Authorities –
The Appendix will strictly adhere to the definition of campus security authority (CSA) and will respect institutions’ discretion in their reasonable determinations of who constitutes a CSA. The 2016 edition expanded the definition of a CSA to include individuals on campus that should likely not be designated so under a strict interpretation of the regulatory framework. The 2016 edition took an expansive view of the phrase “significant responsibility for student and campus activities” found at 34 CFR 668.46(a). As a result, the Department’s new guidance makes clear that it is up to an institution to identify which individuals are CSAs and it is beyond the Department’s authority to disagree with that reasonable determination.
Required Policy Statements
The Higher Education Act of 1965, as amended, (“HEA”) and the Department’s regulations require that institutions include several policy statements in the Annual Security Report. The Appendix provides a list of the required contents , including but not limited to:
1) Policies regarding alcoholic beverages and underage drinking laws
2) Policies regarding illegal drugs and applicable federal and state drug laws
3) Programs on substance abuse
4) Programs to prevent dating violence, domestic violence, sexual assault and stalking, and the procedures institutions will follow when such crimes are reported
5) Information regarding sex offenders
6) Descriptions of emergency response and evacuation procedures
7) Policies regarding missing student notifications
8) Campus crime statistics
9) Policies regarding procedures for reporting criminal actions or other emergencies on campus
10) Policies on security of and access to campus facilities
11) Policies on enforcement authority of security personnel; working relationship of campus security personnel with State and local police agencies; accurate and prompt reporting of crimes; pastoral and professional counselors
12) Programs on campus security procedures and practices
Publication and Reporting
As previously announced, the October 1, 2020 deadline for Clery Reporting and the Annual Security Report (ASR) was extended to December 31, 2020. This Electronic Announcement does not change that extension.
Institutions must provide notice of the availability of the Annual Security Report and the Annual Fire Safety Report (if applicable) to all current and prospective students and employees. This notice must include: 1) a statement of the report’s availability; 2) a statement that a paper copy will be provided upon request and how to obtain one; 3) a brief description of the contents; and 4) the exact electronic address of the report.
Appropriate publications and mailings of the Annual Security Report and the Annual Fire Safety Report include:
• Direct mail to each individual through the post office, campus mail, or e-mail
• Publications provided directly to individuals
• Posting on an Internet or intranet website (subject to specifications in 34 CFR 668.41(e)(2) and (3))
The AACS Government Relations Committee and its federal advocacy team at Duane Morris LLP represents the interests of AACS members in Congress. The GRC, through the Duane Morris team, provides a bi-weekly Washington Update to AACS membership that provides the most relevant information about what is happening in Congress and at the Department that may impact your school. We encourage all AACS members to read the Washington Update to keep up to date on developments and calls to action. We urge each and every AACS member school to set up a call with the Senators and House members who represent your school locations, and consider hosting a fundraiser. We will make it easy for you. Just call our lead advocate, Katherine Brodie at Duane Morris LLP in Washington, D.C. to learn how you can get more involved and help make a difference to your school, employees and students. Katherine can be reached at: kdbrodie@duanemorris.com or (202) 776-5241.
State Update
New York Microneedling Bill Introduced
New York State Assemblywoman Alicia Hyndman introduced a bill last week that would allow licensed estheticians and licensed cosmetologists to practice microneedling upon completion of a five-hour course. According to the official memorandum in support of the legislation, microneedling currently falls under the purview of acupuncture. “With microneedling falling under the purview of acupuncture, aestheticians and cosmetologists performing this procedure do so without licensure or any form of properly recognized training. This puts their health and that of their customers at risk without the proper and effective training. This bill therefore mandates a five-hour microneedling course curriculum to be completed by aestheticians and cosmetologists willing to perform microneedling as well as requires them to complete and pass an OSHA Blood-borne Pathogen Training Certification.”
Assemblywoman Hyndman will be participating – along with Utah State Representative Jim Dunnigan – on a State Legislator Panel at the AACS Annual Convention. They will discuss on October 28th how school officials can best engage state legislators on issues of interest and concern.
In neighboring New Jersey, the Assembly Higher Education Committee favorably reported S1271 last week. As currently drafted, the measure establishes requirements for the closure of private career schools – including cosmetology schools. All schools would be required to have a teach-out plan and “shall enter into a school-to-school teach-out agreement at least 120 days prior to the cessation of school operations.” The bill also contains a section providing for the transfer of “all essential records of the current or former students of the school” to the state. The bill has been referred to the Assembly Appropriations Committee.
On the regulatory front, Washington State’s Department of Licensing amended Chapter 308-20 Cosmetology, Barber, Manicurist, and Esthetician rules pertaining to distance learning. According to an email from the Department, “rules were amended to provide cosmetology schools flexibility in online training. Changes permanently allow cosmetology schools to offer 50% of their education online, as well as decide which content is better for online and which content is better for in-person. These rule changes are effective November 8, 2020.” Prior to the amendment, Washington State regulations allowed 25% percent of the course of study – limited to theory – to be taught online.
Contact Brian Newman at bnewman@abingdonstrategies.com or by phone at 202-491-5254 with comments or questions.
COVID-19 Resources
This page contains a running list of state reopening guidance for salons and other personal care businesses.
AACS Coronavirus Resource Center
The bottom of this page contains a running list of state distance learning guidance. It was compiled with assistance from the AACS State Relations Committee and/or a review of state board websites. Accordingly, developments may be occurring faster than our ability to capture/report on them. Please contact your state regulator(s) for the most current information.
State and Local Government Responses to Covid-19
Stateside Associates, a state and local government relations firm, has created a chart with state legislative actions, executive agency actions, gubernatorial actions, and local government actions related to the outbreak of the coronavirus. Executive actions closing retail and “non-essential” businesses will be of interest.
PBA/Stateside Associates Report: Reopening of State and Local Economies
Updated October 9, 2020
National Governors Association Coronavirus Updates
COVID-19 State Legislation – National Conference of State Legislatures
