What is the relationship between the federal state authorization regulations and state level state authorization regulations?
States expect institutions to obtain necessary approvals (if any) before offering activities in their state.
Compliance with Federal state authorization regulations is intended to tie institutional compliance to state laws and regulations to participate in Title IV, HEA programs.
Final Federal Regulations for State Authorization were published in the Federal Register on Nov 1, 2019. These regulations became effective on July 1, 2020. and replace the 2016 Federal Regulations for State Authorization.
- 34 CFR 600.2 - Definitions (State authorization reciprocity agreement)
- 34 CFR 600.9(c) - State Authorization (for distance education)
- 34 CFR 668.43(a)(5)(v) - Institutional Information (public notifications for programs leading to professional licensure or certification for all modalities)
- 34 CFR 668.43(c) - Institutional Information (individualized notifications for programs leading to professional licensure or certification for all modalities)
You may review the History Webpage: Timeline for Federal Regulation for State Authorization of Distance Education.
It would be prudent to review the Definition section of Title 34 Part 600 for clarification of terms such as Accredited, Branch Campus, and State.
Other Federal regulations related to the out-of-state activities of an institution are currently effective and must be observed.
Federal Regulations for State Authorization & Professional Licensure Notifications Effective July 1, 2020.
USED releases 2019 FINAL Federal Regulations for State Authorization and Accreditation - Released Nov. 1, 2019
Effective Date: July 1, 2020.
There is no substitute for a staff member reading each of the regulations to review the specific language of the regulation.
34 CFR 600.2 –State authorization reciprocity agreement
- Does not regulate the entity we know as SARA.
- Definition: An agreement between two or more States that authorizes an institution located and legally authorized in a State covered by the agreement to provide postsecondary education through distance education or correspondence courses to students located in other States covered by the agreement and cannot prohibit any member State of the agreement from enforcing its own general-purpose State laws and regulations outside of the State authorization of distance education.
34 CFR 600.9(c) – State Authorization of distance education
- The institution must meet any of that State's requirements for it to be legally offering postsecondary distance education or correspondence courses in that State.
- If an institution offers postsecondary education through distance education or correspondence courses in a State that participates in a State authorization reciprocity agreement, and the institution is covered by such agreement, the institution is considered to meet State requirements for it to be legally offering postsecondary distance education or correspondence courses in that State, subject to any limitations in that agreement and to any additional requirements of that State not relating to State authorization of distance education.
- Determination of student location based upon institution’s processes and procedures.
- Document the process for determination to share with the Secretary of the Department of Education upon request. (Time of enrollment in the program & upon formal receipt of information from the student from the institutions processes and procedures.)
34 CFR 668.43(a)(5)(v) – General notifications for programs leading to professional licensure or certification
- New notification added to the list of notifications required under 34 CFR 668.43 Institutional Information in order to participate in Title IV HEA programs.
- Describes the scenario for required notifications for programs leading to professional licensure or certification regardless of modality.
- Describes how to provide general notifications for professional licensure programs. (curriculum meets state requirements, curriculum does not meet state requirements, institution has made no determination)
34 CFR 668.43(c) – Direct notifications for programs leading to professional licensure
- New notification added to the list of notifications required under 34 CFR 668.43 Institutional Information, in order to participate in Title IV HEA programs.
- To prospective students if the curriculum does not meet state requirements or the institution has made no determination where the prospective student is located prior to enrollment in the program. (Prior to enrollment = Prior to financial commitment)
- To enrolled student within 14 calendars days of the institution making a determination that the curriculum does not meet state requirements where the student is located.
Removed 2016 version of 34 CFR 668.50 – Notifications for Distance Education Programs
- The section was removed as most of these notifications were already required in other parts of the Code of Federal Regulations as well as some notifications added to the new Federal regulations.
- Acknowledgement of receipt of notifications no longer required, but we have shared that it would be a best practice to protect the institution.
Other Applicable Federal Regulations
34 CFR 668.43 (b) Institutional Information - The institution must make available for review to any enrolled or prospective student upon request, a copy of the documents describing the institution's accreditation and its State, Federal, or tribal approval or licensing. The institution must also provide its students or prospective students with contact information for filing complaints with its accreditor and with its State approval or licensing entity and any other relevant State official or agency that would appropriately handle a student's complaint.
34 CFR 668.71 Scope and special definitions related to the impact on the institution's participation in Title IV programs if an institution engages in substantial misrepresentation to students. Note that the definition of Misrepresentation indicates that misleading statements include omission of information. SAN members may wish to review the Federal Misrepresentation Presentation available by member log in.
34 CFR 668.72 Nature of educational program. Description of what is deemed misrepresentation by an eligible institution's educational program that includes, but is not limited to, false, erroneous or misleading statements. Note that subsection (c) (2) specifically addresses professional licensure information.
34 CFR 602.17 (h) Student identification verification for distance education or correspondence education. Includes: making clear in writing to the student, at the time of registration or enrollment, if there are any projected additional student charges. (proctoring)
34 CFR 602.24 (c) Teach-out plans and agreements. Addresses institution submission of a teach-out plan to their accreditor under specific circumstances/events as designated in subsection (1) and (2) of the Federal regulation. Generally speaking the need for teach-out plans in institutional at-risk situations.
Regulations are developed by the Department of Education to implement the aspects of the Higher Education Act, which is Federal law. The process to create the language for the regulations is through the Negotiated Rulemaking Process ("Neg Reg"). The purpose is to bring together key stakeholders affected by the issues along with representatives of the Department to negotiate the aspects of proposed regulations. The key stakeholders become the Negotiated Rulemaking Committee. This committee meets to discuss the issues and ultimately votes on a regulatory package for those issues. The committee must vote 100% in favor of the language of the entire regulatory package, which is called consensus. If the committee does not reach consensus for the entire regulatory package, the Department may write the regulations.
The rulemaking process is directed through the Administrative Procedure Act (APA). Strict adherence is required. Failure to follow the APA requirements could cause a regulation to be challenged and possibly vacated by Federal courts for failing to follow APA process.
Federal Rulemaking Resources
SAN & UPCEA Webinar: The Federal Rulemaking Process: How to Follow and Inform Colleagues about the Upcoming Negotiated Rulemaking Meetings and Outcomes; (Recording, Slide Deck, and Transcript)
WCET Frontiers: A Timely Case Study in Federal Rulemaking
- Video #1 Impact of HEA & Role of the Court related to Federal Regulations
- Video #2 Negotiated Rulemaking and Proposed Regulations
Negotiated Rulemaking for Higher Education 2021-22 - Find access to streaming, recordings, and Department of Education announcements.
Negotiated Rulemaking for Higher Education 2018-19 - Accreditation and Innovation (includes Distance Education, Accreditation, State Authorization, Professional Licensure Notifications). Find access to recordings of the rulemaking sessions, public hearings, Department of Education announcements, and scroll to bottom for webinars by the Department.
The Higher Education Act (HEA) was original enacted in 1965 "to strengthen the educational resources of our colleges and universities and to provide financial assistance for students in postsecondary and higher education". The HEA is the foundation for which the Federal regulations are developed to manage higher education. The HEA was last reauthorized in 2008. That reauthorization was set to expire in 2013, but was extended to allow legislators more time to work on a new version. The timeline for passage of a Reauthorization of the HEA is uncertain at this time.