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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 has been working to develop 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 as part of a required "negotiated Rulemaking" process. 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.

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).

May 9, 2018 - Office of Management and Budget (OMB) posting indicates that the USED has proposed a two-year delay of the distance education rule and proposes to amend the regulations through negotiated rule-making.

May 25, 2018 - The USED announces proposed  two year delay of the effective date of the final regulations to ensure adequate time to conduct negotiated rulemaking to reconsider and possibly revise the regulations.

July 3, 2018 - The USED announces two year delay of selected provisions of the 2016 Federal regulations including 34 CFR 600.2; 34 CFR 600.9(c); 34 CFR 668.50.  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 remains JULY 1, 2018.

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

August 2018 -- NEA sues USED regarding delay of December 2016 regulations. 

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.  

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

April 26, 2019 -  The U.S. District Court Judge in the NEA et al., v. DeVos et.al rules for the plaintiff ordering in 30 days after the ruling, a vacatur of the delay of the  2016 Federal Regulations for State Authorization.

May 6, 2019 - SAN and WCET submitted a letter to the Department of Education and to the U.S. District Court asking for a reasonable process to meet the goals of the ruling while protecting students.

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

June 12, 2019 - USED releases Proposed Federal Regulations for 30 day public comment. Includes the state authorization related regulations.  SAN Comment.

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

July 22, 2019 -  USED provided guidance regarding now effective 34 CFR 600.9(c)(2). 

July 29, 2019 USED Announces that the 2016 State Authorization Federal Regulations went into effect on May 26, 2019 citing that the July 2018 delay rule for the regulations was vacated due to the April 26, 2019 U.S. District Court ruling.

July 29, 2019 - California indicates that The Department of Consumer Affairswill accept complaints for students in California.  Here is a blog post from  DCA about their complaint process.

August 2, 2019 - Department of Education considers the California Compliant process acceptable dating back to May 26, 2019, but expects modifications to address "compliance challenges".

August 13, 2019 - Department of Education files unopposed motion for voluntary dismissal of the appeal for NEA; et al. v. DeVos; et al.

 

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 a

For a complete listing of the U.S. Department of Education "Dear Colleague" letters.

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.  Available on Amazon.com in Kindle and Paperback.

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