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Federal Regulations

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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. 

The 2016 Federal regulations for state authorization of distance education were to be effective July 1, 2018.  On July 3, 2018, the Department announced that the effective date of selected provisions of the 2016 Federal regulations would be delayed for two years (July 1, 2020).  The Department maintained that the two year delay provides the required time to review and possibly revise the regulations through Negotiated Rule-making.  Delayed regulations include:  34 CFR 600.2; 34 CFR 600.9(c); 34 CFR 668.50. 

Consensus was achieved during the 2019 Federal Negotiated Rulemaking.  Proposed rules will be released in spring/summer 2019. 

Note that on April 26, 2019, the U.S. District Court ordered a vacatur of the delay and ordered the 2016 Federal regulations to become effective in 30 days (May 26, 2019).  

The regulation for State Authorization of foreign locations of domestic institutions, 34 CFR 600.9 (d) was not delayed. The effective date of that provision remained JULY 1, 2018.

Other Federal regulations related to the out-of-state activities of an institution are currently effective and must be observed.

Federal Regulations

Currently Effective! Originally Effective July 1, 2018* Subject to 2 year delay then delay vacated by the US District Court.

34 CFR 600.2, 34 CFR 600.9 (c) and 34 CFR  668.50  

Publication Date 12/19/16  These provisions were delayed until July 1, 2020.  BUT, April 26, 2019 U.S. District Court ruled vacatur of the delay indicating that the 2016 regulations become effective May 26, 2019. 

34 CFR 600.2:  Definitions - State authorization reciprocity agreement

34 CFR 600.9 (c): State authorization and process for review.

34 CFR 668.50: Institutional Disclosures for programs completed solely through distance education (excluding internships and practice).  Specific public disclosures, individualized disclosures, and acknowledgements  are required.

July 3, 2018 - Federal Register:  Department of Ed Announces 2 year delay of selected provisions of the 2016 Federal regulations for State Authorization to conduct negotiated rulemaking to reconsider and possibly revise the regulations.

July 31, 2018 - Federal Register:  Department's Intent to establish negotiated rulemaking committee.  

August 23, 2018 - NEA, CTA, Shane Heiman, Kwyn Uyehara & Stephanie Portilla v. U.S. Department of Higher Education.  Lawsuit regarding the delayed announcement (July 3, 2018) by the Department of the July 1, 2018 Effective Date Delay of Selected Provisions of the December 2016 regulations.

October 15, 2018  - Federal Register:  Negotiated Rulemaking Committee; Negotiator Nominations and Schedule of Committee Meetings - Accreditation and Innovation.

January - April 2019 - Negotiated Rulemaking for Higher Education 2018-19.

April 2019 - Negotiated Rulemaking concludes with consensus.

April 26, 2019 -  The U.S. District Court Judge orders vacatur of the delay of the December 2016 Federal Regulations for State Authorization.

May 26, 2019 - December 2016 Federal Regulations for State Authorization became effective per the April 26, 2019 court ruling.

June 12, 2019 - USED releases Federal Proposed Regulations for 30 day public comment.  SAN Comment.

June 24, 2019 - USED files notice of appeal of decision of U.S. District Court.

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 revoking the institution's Title IV program participation for an institution's engagement in substantial misrepresentation. Note that the definition of Misrepresentation was revised to indicate that misleading statements include omission of information.  The final rules in 2016 that included this definition was subject to a lawsuit that has concluded with a finding that the 2016 language is currently effective and found here.  eCFR has not been updated as of this date.  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 (g) (2) 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)

HEA Reauthorization

The Higher Education Act (HEA) was originally enacted in 1965.  The Higher Education Act of 1965 (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.  Passage of a Reauthorization of the HEA is not expected until at least 2019. 

The PROSPER Act, released on December 1, 2017, by the House of Representatives’ Committee on Workforce and Education, is the first draft of a Republican bill to reauthorize the HEA.  Helpful information about the PROSPER Act may be found in the Frontier's Post:  House HEA Proposes Changes for Distance Ed, CBE, and State Authorization.  Additional information specifically related to state authorization may be found by SAN members with log in: December 2017 letter to SAN.  

The Aim Higher Act, released July 26, 2018, by the House of Representatives' Committee for Education and Labor is a draft of a House Democrats' bill to reauthorize HEA.

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