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Oversight of Education is a Function of the State

States have the authority to regulate institutions offering education within the state's boundaries.

  • Regardless of modality (face-to-face or distance).
  • For the purposes of consumer protection for the learners participating in educational activities in the state.

Purpose of Federal Regulation of State Authorization

The Department of Education developed Federal regulations for state authorization of distance education to ensure that institutions are complying with state laws in the states in which the institution is disbursing federal financial aid.

Timeline - Federal Regulation for State Authorization of Distance Education

June 2010 - The Department of Education (USED) released its original "state authorization" language for comment.. There is no language about distance education and therefore, no opportunity for comment was given regarding distance education.

October 2010 The USED released its regulation, 34 CFR 600.9 (c) requiring institutions to document that they have the proper approval to serve students in other states.

March 17, 2011 - The USED released a Dear Colleague letter with clarifications on the distance education regulation, beginning with question 15.

April 20, 2011 - The USED released a second Dear Colleague letter. The letter moves the enforcement date to July 1, 2014, but institutions are expected to continue to make "good faith" efforts.

July 12, 2011 - The United States District Court for the District of Columbia struck down the distance education portion of the USED's 'state authorization' regulations (34 CFR 600.9 (c)). The complete ruling is on the Court's website.

June 2012 – The U.S. Court of Appeals affirms the USED’s ability to issue the regulation. The Court upholds a District Court’s ruling to "vacate" the regulation on procedural grounds.  THE FEDERAL DEADLINE WAS ELIMINATED, but states’ laws remain enforceable. The complete ruling is on the US Court of Appeals website.

May 2014  The USED Negotiated Rulemaking Committee was unable to reach consensus on a new federal state authorization for distance education regulation.  

July 2016 - The USED  released new proposed federal regulations requiring institutions to document that they have the proper approval to serve students in other states as well as provide specific general and individual notifications and disclosures.  Institution participation in a state authorization reciprocity agreement is deemed sufficient for approval.

December 2016 - The USED released the regulations for State Authorization of Postsecondary Distance Education, Foreign Locations.  Effective date:  July 1, 2018.

January 2017 - In response to a letter of inquiry to the USED, Under Secretary Ted Mitchell responds with letter to Russ Poulin and Marshall Hill about the USED interpretation for the language of the definition of State Authorization Reciprocity Agreement.

February 2018 in response to a discussion with the USED, WCET, NC-SARA and DEAC coauthored a February 7, 2018 letter to the Department to express concerns about the rules on state authorization that were set to go into effect July 1, 2018 (34 CFR Sections 600 and 668).

2018 U.S. Department of Education Delay Rule to delay the effective date of Final Rules released December 2016

July 31, 2018 -- USED announces intent to establish a negotiated rulemaking to cover 11 important areas of higher education regulation, including state authorization.  https://www.federalregister.gov/documents/2018/07/31/2018-15929/negotiated-rulemaking-committee-public-hearings

September 2018 – WCET/SAN staff testifies at USED public hearing.

October 15, 2018 - USED announces negotiated rulemaking plan and call for nominations for negotiators and subcommittee members for three subcommittees.  

January 14, 2019 - April 3, 2019 -  The Accreditation and Innovation negotiated rule making sessions are held in Washington, DC and available by livestream.

April 3, 2019 - USED Negotiated Rulemaking ends in Consensus for comprehensive list of issues around accreditation and innovation. Consensus language can be found here.

July 1, 2020Final regulations on State Authorization and Accreditation became effective. 

March 2022 The USED Winter 2022 Negotiated Rulemaking Committee was unable to reach consensus on new federal regulations around the issue of Certification Procedures.  This issue included a subsection in a regulation that limited reciprocity and required additional responsibilities to the institution to serve students in programs leading to a license or certification for a profession or occupation.

March 24, 2023Intent to establish a New negotiated rulemaking committee Issues:  Secretary’s recognition of accrediting agencies and related issues; institutional eligibility, including state authorization, definition of distance education as it pertains to clock hour programs and reporting for student enrolled primarily online; return to title IV, cash management to address disbursement of funds; and eligibility requirements for the Federal TRIO programs. SAN & WCET Public Comment Federal Rulemaking 2023. (PDF)

May 19, 2023 - The USED released new proposed federal regulations from 2021-2022 rulemaking for five issue areas, one of which was Certification Procedures.  The subsection of the regulation most pertinent to state authorization requires that institutions determine that they satisfy state education prerequisites to a state license or certification for a profession or occupation where the student is located at time of initial enrollment.  Additionally this subsection requires that institutions determine that they comply with state consumer protection laws regarding closure, recruitment, and misrepresentation in the state where the student is located at time of initial enrollment .

October 31, 2023 - Federal Register published USED announcement of final regulations for Responsibility, Administrative Capability, Certification Procedures, Ability to Benefit (ATB) to be effective July 1, 2024.  The Certification Procedures issue includes that the institution certify in the Program Participation Agreement (PPA) that the program satisfies state education requirements where the institution is located AND student located at time of initial enrollment OR student attests they will seek employment for programs leading to a license or certification as well as provide applicable public and direct notifications.  Additionally, the institution must certify that it complies with state laws related to closure where the student is located at time of initial enrollment. 

November 29, 2023 - Negotiated Rulemaking Committee; Negotiator Nominations and Schedule of Committee Meetings

January -March 2024 - Rulemaking held virtually. Recordings and documents held on U.S. Department of Education Webpage for rulemaking.

March 4-7, 2024 - 2023-2024 Rulemaking Committee Voting:  Cash Management Non Consensus (PDF)* (362K), State Authorization Non Consensus (PDF)* (216K), Distance Education Non Consensus (PDF)* (181K), R2T4 Non Consensus,(PDF)* (250K), Accreditation Regulatory Non Consensus  (PDF)* (767K); TRIO - Final Text Consensus Reached (PDF)* (313K)

Related U.S. Department of Education Guidance:

SAN Report -  The Evolution of Compliance for State Authorization of Distance Education By Sharyl Thompson; sharyl@highereducationconsultingllc.com; Higher Education Regulatory (HER) Consulting 

A more detailed history of state authorization may be found in the book:  State Authorization of Colleges and Universities:  A Handbook for Institutions and Agencies by Alan L. Contreras with Contributing Authors: Sharyl J. Thompson, Russell Poulin, & Cheryl Dowd. The updated second edition was released April 2020. Available on Amazon.com in Paperback.

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