State and Federal Regulations on 'State Authorization' of Distance Education
Cheryl Dowd, Russ Poulin, Marianne Boeke
What is the history of the STATE regulations?
States have long had the authority to regulate institutions offering education within the state’s boundaries, regardless of the modality (face-to-face, distance) being used. The approval process is part of consumer protection for learners in the state. States’ regulations vary from having no regulation to having very strict requirements. Even if an institution teaches only at a distance in a state, many still expect the state process to be followed.
The State Regulations
States expect that your institution obtain the necessary approvals (if any) before advertising or serving students in their state. The state regulations predate the federal regulation and remain in effect. Neither the federal Court orders nor any pending federal action changes the fact that states expect institutions to follow their laws.
What is the history of the FEDERAL regulation?
October 2010 - The U.S. Department of Education (USED) released its regulation (see box to right) requiring institutions to document that they have the proper approval to serve students in other states. http://edocket.access.gpo.gov/2010/pdf/2010-26531.pdf%20p.%2066866
June 2012 - The U.S. Court of Appeals affirms the USED's ability to issue the regulation, which had been contested by the complainant. The court upholds a District Court's ruling to "vacate" the regulation on procedural grounds. THE FEDERAL DEADLINE WAS ELIMINATED, but state's laws remain enforceable. https://www.cadc.uscourts.gov/internet/opinions.nsf/969CEC5FCB92F81685257A14004F3131/$file/11-5174-1377087.pdf
May 2014 - USED Negotiated Rulemaking Committee was unable to reach consensus on a new federal state authorization for distance education regulation. https://wcetfrontiers.org/2014/05/29/state-auth-negreg-what-happened/
June 2014 - Ted Mitchell, Under Secretary for Postsecondary Education, announces that USED will "pause" on issuing a new state authorization for distance education regulation. Currently, for distance education, there is NO FEDERAL REGULATION OR DEADLINE for state authorization. A new regulation was expected by June 1, 2015, but might wait until next year.
July 2016 - USED released new proposed federal regulations requiring institutions to document State's 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. https://www.gpo.gov/fdsys/pkg/FR-2016-07-25/pdf/2016-17068.pdf
December 2016 – USED released the new federal regulations for State Authorization of Postsecondary Distance Education, Foreign Locations. Effective date: July 1, 2018. https://www.gpo.gov/fdsys/pkg/FR-2016-12-19/pdf/2016-29444.pdf
The New Federal Regulations (2016) Highlights
Requirements for institution eligibility to participate in Title IV, HEA programs:
- Authorization by each State in which the institution enrolls students, if authorization is required.
- Reciprocity is sufficient authorization. http://wcet.wiche.edu/sites/default/files/Ted-Mitchell-Reciprocity-Response.pdf
- Required public and direct notifications and disclosures.
- Required authorization for an additional location or branch campus in a foreign location.
What does "operating," "physically located," or "physical presence" in a state mean?
If the institution is conducting any one of a list of "trigger" activities (e.g., advertising in local media, using direct advertising, requiring local proctors, employing faculty or marketers in that state, conducting internships or practica in the state), you could be required to comply. The definition of "presence" and the list of "trigger" activities is at the discretion of each state and varies greatly from state-to-state.
Is there a state-by-state list of regulatory agencies?
The State Higher Education Executive Officers (SHEEO) organization profiles the regulations of more than 70 agencies. Some states have more than one agency. http://sheeo.org/sheeo_surveys/
What about SARA and reciprocal agreements between states?
Through reciprocity, an institution authorized under SARA criteria in its home state would be considered authorized in all other SARA states. SARA is implemented through the regional higher education compacts (WICHE, SREB, MHEC, and NEBHE). As of February 1, 2017, forty seven states and the District of Columbia have been accepted into SARA. The states have approved and provide oversight to over 1500 institutions. National Council for State Authorization Reciprocity Agreements http://nc-sara.org
What are the required public and direct notification and disclosures in the December 2016 federal regulations?
Public Notifications and Disclosures include:
- Authorizations in each state where activity is offered if authorization is required.
- Student Complaint Processes to the appropriate state agencies.
- Adverse Actions by a State or accrediting agency against an institution’s distance or correspondence activities in the past five years.
- Refund Policies that the institution is required to comply with in that state.
- Licensure and Certification Requirements – whether the program meets the requirements in the students State to allow the student to be licensed of certified or to sit for a qualifying exam.
Direct Notifications and Disclosures include:
- Program Licensure or Certification Requirements – the institution must directly notify the student indicating whether the program will or will not meet requirements in the state where the student is located.
- Adverse Actions – if a new adverse action is taken, the students must be notified.
- Cease to meet Licensure or Certification Requirements – if the program formerly met requirements and now does not, the student must be directly notified. https://wcetfrontiers.org/2016/07/22/department-of-education-state-authorization-for-distance-ed-regulations-a-first-look/
WCET Updates on State Authorization
Website with updates: http://wcet.wiche.edu/focus-areas/policy-and-regulation/state-authorization
WCET blog: http://wcetblog.wordpress.com/
State Authorization Network: http://wcet.wiche.edu/initiatives/state-authorization-network
Support our Work. Join SAN: http://stateauthorization.org/
State Authorization Network Team:
Cheryl Dowd: email@example.com
Russ Poulin: firstname.lastname@example.org
Marianne Boeke: email@example.com