Can a foreign medical school get approved to offer courses or clinical training in Texas?

Plain-English summary

Commissioner of Higher Education Raymund Paredes asked the Attorney General whether the Texas Higher Education Coordinating Board had authority to grant a certificate of authority, under Education Code section 61.306, to a foreign-based medical school that wanted to offer courses in Texas. A certificate of authority lets certain private postsecondary schools grant degrees and enroll students for courses that count toward a Texas degree. The concrete situation was a Caribbean-based medical school seeking to give third- and fourth-year students clinical training through clerkships at Texas teaching hospitals; the Commissioner said the school had followed the application procedures and asked only whether the school's foreign location made it ineligible. The opinion expressly took no position on whether that particular school met the criteria, addressing only the general question.

The opinion looked at chapter 61, subchapter G, which governs the Board's regulation of private postsecondary institutions. That subchapter was enacted in 1975 to deal with the growth of off-campus instruction and "degree mill" operations, and amendments in 1985 closed a loophole that had exempted certain unaccredited professional schools, including foreign-based schools operating in Texas, from regulation. Reading the statute's plain language, the opinion found that chapter 61 contains no geographic requirement or restriction that would bar the Board from issuing a certificate of authority to a foreign-based institution that otherwise meets the Board's standards. Because there is no domestic-origin requirement, a qualifying foreign medical school could be considered as a candidate.

The opinion was equally clear about the other side. Nothing in chapter 61 forces the Board to grant a certificate. Subsection 61.306(a) says the Board "may issue" a certificate if it finds the applicant meets the Board's standards, and the opinion read that permissive language to make the decision discretionary: even a school that meets every standard can be granted or denied as the Board sees fit, including on the basis of its foreign location. The opinion also rejected the suggestion that the Board had to wait for the Legislature to weigh in, finding no statute that limited when the Board could act, so the Board could also delay considering a pending application at its discretion. In short, chapter 61 gave the Board discretion to grant or deny a certificate to a qualifying foreign medical school.

Currency note

This opinion was issued in 2012. Subsequent statutory amendments, court decisions, or later Attorney General opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

What the opinion meant for those who asked

The Higher Education Coordinating Board (as the opinion described it): The opinion concluded the Board had discretion to grant or deny a certificate of authority to a foreign medical school that met the statutory and regulatory criteria, and could base a denial on the school's foreign location or any other reason it deemed appropriate.

Foreign-based schools applying in Texas (as the opinion described it): The opinion found no geographic or domestic-origin bar in chapter 61, so a qualifying foreign school could be considered, while noting the Board was not required to approve it.

The specific Caribbean medical school (as the opinion described it): The opinion expressly declined to decide whether that school met the criteria for a certificate of authority, addressing only the general eligibility question.

Common questions

Does Texas law flatly bar a foreign medical school from operating here?
No. The opinion found chapter 61 of the Education Code has no geographic or domestic-origin restriction, so a foreign school that meets the Board's standards can be considered for a certificate of authority.

If a foreign school meets every requirement, must the Board approve it?
No. The opinion read section 61.306(a)'s "may issue" language as discretionary, so the Board could grant or deny even a fully qualifying applicant.

Could the Board wait for the Legislature before deciding?
Yes. The opinion found no statute limiting when the Board must act, so it could delay considering a pending application at its discretion.

Did this opinion approve the Caribbean medical school?
No. The opinion took no position on whether that particular school met the criteria; it answered only the general question about foreign location.

Background and statutory framework

Education Code chapter 61, subchapter G (sections 61.301-.321), governs the Coordinating Board's regulation of private postsecondary educational institutions. A "private postsecondary educational institution" is defined in section 61.302(2). An institution accredited by a Texas-approved agency is exempt from needing a certificate of authority and instead seeks a "certificate of authorization" under section 61.303. An unaccredited institution that wants to grant degrees or offer degree-applicable courses applies for a certificate of authority, whose application elements are set out in section 61.305 and Board rule 19 Texas Administrative Code section 7.8.

Section 61.306(a) authorizes the Board to issue a certificate of authority if it finds the applicant meets the Board's certification standards. Related provisions include section 61.308(c) (renewal, where the Board "shall renew" a certificate if the institution maintained the standards), section 61.310 (written notice of reasons for denial and a hearing), and section 61.313(a) (limits on using terms like "medical school" without a certificate). The opinion applied the plain-language approach from R.R. Comm'n of Texas v. Texas Citizens for a Safe Future & Clean Water.

Citations

Cases:

• R.R. Comm'n of Tex. v. Tex. Citizens for a Safe Future & Clean Water, 336 S.W.3d 619, 628 (Tex. 2011)

Statutes and rules:

• Tex. Educ. Code Ann. §§ 61.301-.321, including §§ 61.302(2), 61.303(a), 61.303(c), 61.305, 61.306(a), 61.308(c), 61.310, 61.313(a) (West 2006)
• 19 Tex. Admin. Code § 7.8 (2012)
• Tex. H.B. 1538, 64th Leg., R.S. (1975); Tex. H.B. 934, 69th Leg., R.S. (1985)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0975
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2012/ga0975.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

November 20, 2012

Raymund A. Paredes, Ph.D. Opinion No. GA-0975
Commissioner of Higher Education
Texas Higher Education Coordinating Board Re: Whether the Texas Higher Education
Post Office Box 12788 Coordinating Board may grant a certificate of
Austin, Texas 78711 authority to a foreign school, including a foreign
medical school, pursuant to section 61.306 of the
Education Code (RQ-1062-GA)

Dear Commissioner Paredes:

You ask whether the Texas Higher Education Coordinating Board (the "Board") has the authority to grant a certificate of authority under section 61.306 of the Education Code to a foreign based medical school that wishes to offer courses in Texas. A certificate of authority issued by the Board generally allows certain private postsecondary educational institutions[2] to grant degrees and to enroll students for courses which may be applicable toward a degree in Texas.[1] You tell us that a medical school based in the Caribbean seeks to provide clinical training to certain third- and fourth-year students through clerkships at Texas teaching hospitals and that the school "has followed the procedures required by [the Education Code and Board rule] for application for a certificate of authority."[3] Request Letter at 2. You ask whether the Board nevertheless lacks authority to grant a certificate of authority to this medical school because it is not based in the United States. Id. Your letter assumes that the school in question otherwise meets the statutory and regulatory criteria for issuance of a certificate of authority. We express no opinion on whether the specific medical school in question meets the criteria for a certificate of authority. We address only the general question of whether a school's foreign location makes the school ineligible for a certificate of authority.

Chapter 61, subchapter G of the Education Code governs the Board's power to regulate private postsecondary educational institutions. See generally TEX. EDUC. CODE ANN. §§ 61.301-.321 (West 2006). By way of background, subchapter G was originally enacted in 1975 to regulate the increasing use of off-campus instruction, credit by examination, college-without-walls arrangements, and the accompanying proliferation of "degree mill or diploma mill" operations.[4] Subsequent amendments in 1985 closed a loophole that had previously exempted certain unaccredited professional schools, including foreign-based schools operating in Texas, from the regulation of subchapter G.[5] Subchapter G authorizes the Board to issue a certificate of authority authorizing a private postsecondary educational institution to enroll students for courses in Texas which may be applicable toward a degree[6] if the Board "finds that the applicant meets the standards established by the [B]oard for certification."[7] Id. § 61.306(a).

Chapter 61 contains no geographic requirements or restrictions that explicitly prevent the Board from issuing a certificate of authority to a foreign-based institution that otherwise meets the standards established by the Board for the issuance of such a certificate. See R.R. Comm'n of Tex. v. Tex. Citizens for a Safe Future & Clean Water, 336 S.W.3d 619, 628 (Tex. 2011) (noting that we construe a statute so as to give effect to the Legislature's intent as expressed in its plain language).

We have not found, nor have you directed this office to, any other legal requirement or restriction that would prevent the Board from considering a foreign institution as a candidate for a certificate of authority. Because there is no statutory requirement that the institution applying for a certificate of authority be of domestic origin, a foreign medical school that otherwise satisfies the statutory and regulatory criteria could be considered by the Board as a candidate for a certificate of authority.

Notably, however, nothing in chapter 61 explicitly prevents the Board from denying an original certificate of authority on the basis of the applicant's foreign location or for any other reason the Board deems appropriate. The plain language of subsection 61.306(a) makes it clear that the Board's power to bestow original certificates of authority is discretionary. TEX. EDUC. CODE ANN. § 61.306(a) (West 2006) ("The board may issue a certificate of authority ... if it finds that the applicant meets the standards established by the board for certification.")[8] (emphasis added). Thus, even if a private postsecondary educational institution meets all the standards established by the Board for original certification, the Board retains the discretion to grant or deny the certificate as it deems appropriate.[9] In sum, nothing in the statute indicates that foreign schools are excluded from consideration. By the same token, nothing indicates the Board must include them, either. It is up to the Board to determine, in the first instance, whether the granting of a certificate of authority to a particular school is consistent with the Board's standards.

Some briefing submitted to this office has suggested that the Board delay action until the Legislature can consider the policy implications of a decision to allow or disallow the issuance of certificates of authority to foreign schools. We find no statute limiting the exercise of the Board's discretionary authority to any particular time period. Thus, nothing prevents the Board from delaying consideration of a pending application for an original certificate of authority at its discretion.

In sum, we conclude that chapter 61 of the Education Code gives the Board discretion to grant or deny a certificate of authority to a foreign medical school that otherwise satisfies the statutory and regulatory criteria for issuance of a certificate.

SUMMARY

Chapter 61 of the Education Code gives the Board discretion to grant or deny a certificate of authority to a foreign medical school that otherwise satisfies the statutory and regulatory criteria for issuance of a certificate.

Very truly yours,

GREG ABBOTT
Attorney General of Texas

DANIEL T. HODGE
First Assistant Attorney General

JAMES D. BLACKLOCK
Deputy Attorney General for Legal Counsel

JASON BOATRIGHT
Chairman, Opinion Committee

Becky P. Casares
Assistant Attorney General, Opinion Committee

[1] Letter from Raymund A. Paredes, Ph.D., Comm'r, Tex. Higher Educ. Coordinating Bd., to Honorable Greg Abbott, Tex. Att'y Gen. at 1 (May 21, 2012), http://www.texasattorneygeneral.gov/opin ("Request Letter").

[2] A "private postsecondary educational institution" is "an educational institution which: (A) is not an institution of higher education as defined by Section 61.003; (B) is incorporated under the laws of this state, maintains a place of business in this state, has a representative present in this state, or solicits business in this state; and (C) furnishes or offers to furnish courses of instruction in person, by electronic media, or by correspondence leading to a degree or providing credits alleged to be applicable to a degree." TEX. EDUC. CODE ANN. § 61.302(2) (West 2006). If the institution is accredited by a Texas-approved accrediting agency, it is exempt from the requirement of obtaining a certificate of authority. See id. § 61.303(a). Instead, an accredited institution seeking to grant degrees or offer courses applicable toward a degree in Texas would apply for a "certificate of authorization" from the Board. See id. § 61.303(c).

[3] See generally TEX. EDUC. CODE ANN. § 61.305 (West 2006) (setting forth the elements of an application for a certificate of authority); 19 TEX. ADMIN. CODE § 7.8 (2012) (Tex. Higher Educ. Coordinating Bd., Institutions Not Accredited by a Board Recognized Accreditor) (outlining the process to obtain a certificate of authority for an institution which is not accredited by a recognized accreditor and which does not meet the definition of "institution of higher education" under section 61.003 of the Education Code).

[4] HOUSE COMM. ON HIGHER EDUC., BILL ANALYSIS, Tex. H.B. 1538, 64th Leg., R.S. (1975).

[5] HOUSE COMM. ON HIGHER EDUC., BILL ANALYSIS, Tex. H.B. 934, 69th Leg., R.S. (1985) ("Certain unaccredited professional schools (e.g. private medical or law schools) currently are not subject to any type of quality standards because of provisions in the law which exempt from state regulation any schools whose graduates are subject to state licensure. Concerns have been raised by the attorney general's office and the Coordinating Board over the operation in El Paso of a Caribbean medical school branch facility.").

[6] See TEX. EDUC. CODE ANN. § 61.302(1) (West 2006) (defining a "degree" to include "any title or designation, mark, abbreviation, appellation, or series of letters or words, including ... doctor's ... which signifies, purports to, or is generally taken to signify satisfactory completion of the requirements of all or part of a program of study leading to [a] ... doctor's degree or its equivalent"); see also id. § 61.313(a) (providing that, absent a certification of authority granted under subchapter G, an institution generally "may not ... use the term ... 'school of medicine,' 'medical school,' [or] 'health science center,'" among others).

[7] To apply for a certificate of authority, the Board requires that an institution meet certain eligibility requirements concerning the current legal operation of the institution. See 19 TEX. ADMIN. CODE § 7.8(1)(A) (2012) (Tex. Higher Educ. Coordinating Bd., Institutions Not Accredited by a Board Recognized Accreditor) (Certificate of Authority, Eligibility). In addition, an institution must, among other requirements: (1) have either a letter of exemption or Certificate of Approval from the Texas Workforce Commission; (2) comply with standards for operations of institutions set forth by rule; (3) submit all accrediting agency reports, findings, and responses; and (4) be subject to an on-site evaluation if deemed necessary by the Commissioner of Higher Education. See id. § 7.8(3) (Authorization Process).

[8] But see TEX. EDUC. CODE ANN. § 61.308(c) (West 2006) (providing that on an application for renewal of a certificate of authority, "[t]he Board shall renew the certificate if it finds that the institution has maintained all requisite standards and has complied with all rules and regulations promulgated by the board") (emphasis added).

[9] See also id. § 61.310 (providing that an institution is entitled to written notice of the reasons for a denial and may request a hearing); 19 TEX. ADMIN. CODE § 7.8(3)(M)-(N) (2012) (Tex. Higher Educ. Coordinating Bd., Institutions Not Accredited by a Board Recognized Accreditor) (providing that if the Board approves the application then the certificate of authority is immediately prepared, but if the Board does not approve the application then the Commissioner of Education immediately notifies the institution of the denial and the reasons for the denial).