State Authorization – Changes Proposed to Regulatory Language at April Meeting

NOTE:  Since publishing this blog post, the Department released an updated document that includes proposed wording resulting from discussion at the April meeting. — Russ

Members of the U.S. Department of Education’s Negotiated Rulemaking Committee proposed many options for the federal rules that institutions would need to meet regarding the state authorization of distance education. The Department was interested in addressing the concerns expressed by several negotiators. In this post, I highlight what appears to be the latest language on the most important issues.

For those from institutions that offer programs in licensure-related areas (nursing, social work, etc.), whether at a distance or on-campus, be sure to read the section on licensure.

A reminder that the Department personnel are keen on reinstating this regulation. If the Department is going to return this regulation, we want to try to improve the language within the constraints put on us by the Department and the constraints of a negotiated progress. Therefore, this is an update with minimal discussion of merit. I would love your feedback.The words "state authorization surrounded by all the state names.

Also, there are many items that would require further definition or are left to the states to define. That fact is known. Comments focusing more on the concepts than the fact that a term needs to be defined would be must helpful.

The Department is working on the next version and they have given us a chance to make more suggestions through April 30, so I do not have exact language to share. I will present my best understanding of what is currently on the table. Any errors or misconceptions are purely my own.

Exemptions

The Department originally proposed that states could no longer exempt institutions based upon accreditation, years of service, or “comparable exemption” (such as lack of “physical presence” in a state). There was worry about the impact on state, institutions, and students about such a regulation since we estimate that about 45 states use exemptions. It was unclear if the Department was trying to force an extensive review by each State. They were not. They feel that the state needs to “actively review” the institution based on more criteria than just accreditation, since accreditation’s role is to focus on academic quality.

For exemptions, a state would have to do the following:

  • Exempt institutions by name. The state would have to take action to exempt an institution and not just post on its website that institutions meeting certain criteria are exempt. A few states do not exempt by name now.
  • Have a complaint process that allows the state to resolve complaints and enforce applicable state law.
  • Beyond accreditation, review at least two of the following criteria: the institution’s fiscal viability, refund policy, programs in which students can enroll in that state, estimated tuition and fees for a year, institution’s complaint process, and the institution’s history in providing distance education. Note: This list is of recent construction and could use suggestions.

Thank you to our friends from Boise State University and the University of Alabama-Birmingham for helpful emails with suggestions to me on the exemptions issue.

Implementation Date for the New State Exemption Standard

Based on the clarification of what a state needs to do to exempt an institution, fewer states than originally thought will need to do anything to change their regulations. For those that do need to make changes, there was interest in giving them time to change state laws and implement at process. While the state is working on this, the institution remains eligible up to July 1, 2018. Students enrolled at that point remain eligible through the duration of completing their degree requirements.
It is hoped that all states will have adjusted their exemptions and allowed states to comply by July 1, 2018. A one-year extension is allowed for institutions in states if the institution has applied and the state has not completed processing applications. The Department also gave itself leeway to change the 2018 date, if needed.

Minimum Enrollments in a State

The Department clarified its proposed language regarding 50 percent of a program and added an additional minimum before compliance is required.

The 50 Percent Threshold

Prior to this meeting, the Department suggested that an institution would be subject to this regulation only if it “offers or will offer 50 percent or more of a postsecondary education program through distance or correspondence education to student in that State.” This resulted from a suggestion of mine that the Department align the distance education regulation with their rules regarding “other locations” of an institution that are physically located in another state.
They did clarify that the 50 percent means that it takes only fewer than thirty students (see below) who has completed or plans to complete at least 50 percent of the requirements of their degree via distance or correspondence education while residing in another state to move beyond the 50 percent threshold. It is NOT meant to capture students who are commuting across state lines and taking their courses either face-to-face or via hybrid courses.
They also clarified the if a state has a more stringent requirement, that requirement triggers the need for the institution to follow the federal requirement in that state. For example, some states require approval if you enroll only one student in one course via distance education. Since the state has a more stringent requirement that would trigger the need for the institution to also meet federal requirements in that state.

Thirty Students in a Year

Responding to a suggestion from one of the consumer protection groups, the Department also proposes that if an institution enrolls 30 or fewer students in a State, it is considered to be legally authorized in that state. This is aimed at the instances when an institution enrolls students in only a few courses, enrolls only a few students in a degree program, or is part of an interstate agreement in which students enroll in a few courses from other colleges. The 30 students would be total unduplicated headcount for an academic year.

To be honest with you, the 30 student “de minimis” was given to us late on Friday and there are many details to be figured out about how this works (or does not work) with the 50 percent threshold or how it would work, in general.

Licensure Programs

In licensure programs (such as nursing, physical therapy, teacher education, etc.), institutions would be required to notify students if completion of the programs would meet the educational requirements for certification of sitting for licensure or certification exams in the student’s state. If not, the student could still enroll if the student provides written acknowledgment that the student understands that program does not fulfill those requirements. If applicable, this written notice would include that the student understands if additional requirements (beyond the program, such as coursework, field experience, or other) must be completed to obtain licensure in that state.

Troubling to several negotiators was that this requirement would apply to all licensure programs whether on-campus or at a distance. Since this discussion was advertised as being about distance education, there was worry that this provision was beyond our scope. The Department’s lawyer assured us that it is within our scope.

Reciprocity

There is still strong support for reciprocity in the language even though some negotiators would like to see (what I think are) very strict requirements on reciprocal agreements. Some new proposed language includes:

  • There was discussion about what happens if a student “is not satisfied with the result of the student complaint process provide for under the agreement.” The current thinking is that student’s can also complain in their home states unless that home state actively participated in the original complaint process.
  • Changing the previous requirement that institutions automatically lose their right to grant aid in state if the institution’s state withdraws or is removed from a reciprocity agreement. That action could be beyond the institution’s control and there is time given for the institution to seek authorization on its own.

Next Steps and Final Words

The Department is taking suggestions from negotiators by April 30. The Committee holds its final meeting on May 19-20. Based on the outcome of this process, the Department will create a final version and hold an open comment period.

The Department has made numerous changes and improvements based upon suggestions by the negotiators. They are to be commended for this.

Even so, the negotiators are trying to judge the impact of the entire package. Your input on these key issues will help.Photo of Russ Poulin with baseball bat

 

Russell Poulin
Interim Co-Executive Director
WCET – WICHE Cooperative for Educational Technologies
rpoulin@wiche.edu
If you like our work, join WCET!

15 Comments

  1. Al Powell
    Posted May 5, 2014 at 4:09 pm | Permalink | Reply

    Russ, I saw these two items:

    For exemptions, a state would have to do the following:

    Exempt institutions by name. The state would have to take action to exempt an institution and not just post on its website that institutions meeting certain criteria are exempt. A few states do not exempt by name now.

    Question…Does this mean that states would have to name EVERY exempt institution nationwide? A waste of time and effort.

    Have a complaint process that allows the state to resolve complaints and enforce applicable state law.

    Note…in some states, this would potentially put federal and state laws in direct conflict. In Colorado, contracts with public institutions must be written so that all disputes are resolved at a location inside Colorado, under Colorado state law. It appears to me that this would directly conflict with a provision that complaints would be resolved under a different state’s law.

    Al

    • Posted May 5, 2014 at 5:04 pm | Permalink | Reply

      Al –
      On exemption by name…yes, the expectation would be that the state name every institution that is legally serving students in the state. If you leave oversight to each individual state, then that makes sense to me. I don’t see how a state can have oversight over an institution it knows nothing about. My objection has been that the Department wants to get rid of exemptions as one method of being declared to legally serve students in a state.

      On complaint processes…if your institution gets authorized in another state, then it is saying that that the institution will abide by the laws of the other state…and their complaint processes. This exists now without the federal regulation. If there is a conflict, then it is between Colorado’s laws and those of all other states. Colorado expects institutions from other states to follow its laws when serving students in Colorado. The issue may be the difference between contracts for services and consumer protection laws. As I’ve been told, consumer protection laws typically apply where the consumer receives the service.

      Russ

  2. Kelley Brandt
    Posted May 1, 2014 at 11:39 am | Permalink | Reply

    I would like to summarize the list of activities Boise State will need to complete IF §600.9 (c) is approved. (remember it’s not approved yet, there is still time for comments)
    When Boise State University {defined by §600.4} offers or will offer 50 percent or more of a postsecondary education program through distance or correspondence education {§600.9(c)(1)(i)}, to students who reside in Oregon (or any other state), Boise State must {§600.9(c)(7)}:
    1. Prove to USDOE that Oregon has a process to review complaints against Boise State. {§600.9(c)(1)(i)(A)}
    2. Prove to USDOE that Oregon has a process to act in a timely manner on complaints against Boise State. {§600.9(c)(1)(i)(A)}
    3. Prove to USDOE that Oregon has a process to enforce applicable Oregon laws on Boise State in response to the complaint. {§600.9(c)(1)(i)(A)}
    4. Prove to USDOE that Oregon has final authority to resolve complaints against Boise State. {§600.9(c)(1)(i)(A)}
    5. Prove to USDOE that Oregon has final authority to enforce applicable State laws on Boise State in response to the complaint. {§600.9(c)(1)(i)(A)}
    6. Prove to USDOE that Oregon has approved or licensed Boise State to offer postsecondary distance or correspondence education, including programs leading to a degree or certificate, to residents in Oregon and that proof must have Boise State University’s name on it. {§600.9(c)(1)(i)(B)(1)}
    7. If approval or licensure based on exemption, prove to USDOE that Oregon exempted Boise State based on more than just accreditation, years in operation, or other comparable exemption but also asked for several other criteria (see sample list). {§600.9(c)(8)(i)(ii)}
    8. Prove to USDOE that Oregon has approved or licensed Boise State to offer postsecondary distance or correspondence education, including programs leading to a degree or certificate, to residents in Oregon through a State-to-State agreement or a State authorization reciprocity agreement administered by a non-State entity and that proof must have Boise State University’s name on it. {§600.9(c)(1)(i)(B)(2 or 3)} NOTE: this is in addition to step 6 above because there is no “or” between §600.9(c)(1)(i)(B)(1) and §600.9(c)(1)(i)(B)(2).
    9. Prove to USDOE that Boise State informed our students and prospective students that we are participating in a State-to-State agreement, or a State authorization reciprocity agreement administered by a non-State entity. {§600.9(c)(2)} {§668.43(b)(3)(i)}
    10. Prove to USDOE that Boise State made readily available to our students and prospective students contact information for filing complaints with our accreditor. {§600.9(c)(2)} {§668.43(b)(2)}
    11. Prove to USDOE that Boise State made readily available to our students and prospective students contact information for filing complaints with Idaho approval or licensing entity. {§600.9(c)(2)} {§668.43(b)(2)}
    12. Prove to USDOE that Boise State made readily available to our students and prospective students contact information for filing complaints with any other relevant State official or agency that would appropriately handle a student’s complaint. {§600.9(c)(2)} {§668.43(b)(2)}
    13. Prove to USDOE that Boise State made readily available to our students and prospective students the name of all associations, agencies or governmental bodies that accredit, approve, or license Boise State and its programs and the procedures by which documents describing that activity may be reviewed. {§668.43(a)(6)(i)}
    14. Prove to USDOE that Boise State made readily available to our students and prospective students, upon request, a copy of the documents describing Boise State’s accreditation and its State, Federal, or tribal approval or licensing. {§600.9(c)(2)} {§668.43(b)(1)}
    15. Prove to USDOE that Boise State made readily available to our students and prospective students with contact information for filing complaints with Oregon’s official agency that would appropriately handle a student’s complaint. {§600.9(c)(2)}
    16. Prove to USDOE that Boise State informed our students enrolled in a distance or correspondence education program that while Boise State is participating in a State-to-State agreement with Oregon, or a State authorization reciprocity agreement administered by a non-State entity and includes Oregon, the student may utilize the complaint process in Oregon if the student is not satisfied with the results from the complaint process provided by the State-to-State or State authorization reciprocity agreement. {§600.9(c)(2)} {§668.43(b)(3)(ii)} Boise State can ignore §668.43(b)(4) since we don’t have a branch campus outside of Idaho.
    17. Prove to USDOE that Boise State is legally authorized to offer distance or correspondence education to students physically located in Idaho. {§600.9(c)(4)}
    18. Repeat steps 1-8 & 15-16 for each applicable State and U.S. Territory that Boise State University offers postsecondary distance or correspondence education, including programs leading to a degree or certificate, to residents in that State and U.S. Territory. {§600.9(c)(7)}
    19. Prove to USDOE that a member of the armed forces, or a member’s spouse or dependent child, continuously enrolled in distance or correspondence education through Boise State when that member’s home or permanent duty station location changed to a different State or U.S. Territory.{§600.9(c)(11)(i)}
    20. Prove to USDOE that Boise State obtained written acknowledgement from each student that the student knows their intended Boise State program (provided only online, only in-person at the Boise State campus, or blended) does not meet the educational, and as applicable, programmatic or institutional accreditation requirements for graduates of those programs to receive certification or sit for the licensure or certification examinations required in the State in the occupation for which the program is intended. The written acknowledgement from the student must include the statements “your intended program will not fulfill educational, or as applicable, programmatic or institutional accreditation requirements for licensure, or to obtain licensure or certification in that State and, if applicable, additional coursework, field experience, or other academic requirements must be completed to fulfill requirements to obtain licensure or certification in that State.” The words “that State” refers to the State in which the student physically resides with enrolled in the program. Boise State must prove to USDOE that we completed these same steps when a student moves to a new State and the same program outcome is expected. .{§600.9(d)(i) and (ii)}
    If Boise State has 30 or less students (undiplicated headcount) residing in Oregon during last year’s financial aid award year, Boise State does not have to complete steps 6, 7 and 8 {§600.9(c)(1)(i)(C)}, UNLESS Oregon requires Boise State to seek authorization based on having just 1 student residing in Oregon. {§600.9(c)(1)(ii)}
    If a State and U.S. Territory exempts Boise State University from State approval or licensure requirements based solely on accreditation, years in operation, or other comparable exemption, then Boise State will not have to complete steps 1-7 & 10 for that State and U.S. Territory and Boise State cannot admit students from that State and U.S. Territory. {§600.9(c)(8)(i)}

    In case Boise State University is no longer considered to be legally authorized by another State to offer distance or correspondence education to residents in that State, we must prove to USDOE that Boise State immediately notified our students and prospective students residing in that State that we are no longer able to distribute Federal student aid to students in that State. Also prove this information was immediately posted prominently on our website. {§600.9(c)(12)}. This includes our withdrawal or removal from a State-to-State or State authorization reciprocity agreement, or when a non-State entity administering the State authorization reciprocity agreement ceases to operate, unless USDOE provides an extension of our ability to disburse Federal student aid because of time needed to rectify the legal authorization issue. {§600.9(c)(13)(i)}

    For you other public institutions out there, you may want to prepare yourself for this work.

  3. Rick Shearer
    Posted April 30, 2014 at 8:18 am | Permalink | Reply

    Hi Russ. Great seeing you last week at the session and thank you for the recap. A couple of items from the language released Thursday (although it may have been addressed on Friday when I was not there).

    1. In the section related to states withdrawing authorization – was there any clarifying language added about a teach out period for students. The existing language tended to refer to a negotiation with the state to continue the program, but not how to close it out.

    2. In the section dealing with military – they mention continuous enrollment, but would they consider a student in the military to be in continuous enrollment if deployed on active duty and being in a situation where they cannot participate in courses? It would seem strange for one sector of the federal government (DOD) to deploy a military student and then have another sector (DOE) disallow them from continuing there education due to a situation where the student cannot remain in continuous enrollment.

    Regards.

    Rick Shearer
    Director World Campus Learning Design
    Penn State University

    • Posted April 30, 2014 at 10:05 pm | Permalink | Reply

      Rick –
      For a state withdrawing authorization, there was not talk of a teach out. There was for an institution that loses authorization because its state leaves or is removed from a reciprocity agreement. This would be a good question.

      There was language added for members of the military who experience “service-related circumstances beyond the control of the servicemember” – like deployment.

      Russ

  4. Posted April 28, 2014 at 1:25 pm | Permalink | Reply

    Russ,

    You asked for feedback for the list of items a state would look select from to exempt an institution short of an “extensive review. The requirement of reviewing accreditation and complaint process seems to align with what we see in the NC-SARA agreement.

    It seems to me the items fall into the categories of academic quality, institutional viability, and consumer protection, I wouldn’t be surprised if some states are going to want to consider student outcomes as well (i.e. is the student (state, society) getting what they paid for). Cost of tuition/fees gets at that idea.

    Perhaps these categories will spark some ideas.

    Tom Dolan

  5. Kelley Brandt
    Posted April 28, 2014 at 12:50 pm | Permalink | Reply

    Thank you Russ for all the hard work and keeping us informed.
    * I don’t mind the idea of a state authorization agency exempting an institution by name. The agency can ask for details on the institution’s complaint process, maybe include contact information from the institution’s home state complaint processing office. Asking for information about an institution’s accreditation status plus a couple of other criteria, seems reasonable. As long as USDOE does not prescribe required additional criteria, States may feel more inclined to choose following USDOE regulations before July 2018.
    * I am concerned. There is no guarantee a State will change its laws or process just to satisfy a federal regulation about distance education, especially if no change means less competition for the State’s home institutions. Out of state institutions that cannot be exempt by name, cannot offer financial aid to the students in that non-compliant State. OR the institution will seek the lengthy, and sometimes costly, full state authorization process.
    * If the federal regulation specifies the acceptable exemption standards, then higher education institutions will be in a no-win situation. It’s like saying you can drive on the interstate as long as every State you want to drive through sets the speed limit at 55. I’ll either drive around the state or pay more money to fly over. Bottom line: I bet the exemption by name is going to be in the final language but please advocate for States to decide on the exemption criteria.

  6. Brian Fernandes
    Posted April 27, 2014 at 6:01 pm | Permalink | Reply

    Hi Russell,

    Thanks for the update.

    Could you clarify about the “30 student” rule? If an institution enrolls fewer than 30 students from state X in an online program, will that institution automatically be in compliance?
    Brian

    Brian G. Fernandes
    Vice President for Enrollment Management
    Dominican College
    470 Western Hwy
    Orangeburg, NY 10962
    Tel: (845) 848-7807
    Fax: (845) 365-0275
    http://www.dc.edu
    “More than an education……a relationship”

    • Posted April 27, 2014 at 6:10 pm | Permalink | Reply

      Brian –
      It is proposed that…
      If your institution enrolls 30 or fewer students in a state in a year, then the college is not subject to the federal state authorization regulation for that state. However, your institution is not “authorized” in that state. Only the state can grant authorization and the state will expect you to follow its regulations.
      The 30 limit would be for the entire institution, not just a single online program from that institution. And it would be 30 students over a year’s time.
      Russ

  7. Posted April 27, 2014 at 5:32 pm | Permalink | Reply

    I received the following question:

    Hi Russ,
    Thanks so much for the updates on the rule making process. One question: under this thirty students in a state clause, would schools with fewer than 30 students automatically be authorized or would there still be a process to undertake? Your summary is a little confusing. Thanks so much!!

    Jason Block
    UNC-Chapel Hill
    = = = = = = = = =
    My response:

    Jason –
    Thank you for you question.
    Here’s my take on it…If your institution enrolls 30 or fewer students in a state in a year, then the college is not subject to the federal state authorization regulation for that state. However, your institution is not “authorized” in that state. Only the state can grant authorization and the state will expect you to follow its regulations. It would create an interesting situation in some states where the institution can offer financial aid to a few students even though the state would consider enrolling those students to be an unauthorized or illegal activity.

    Good question!
    Russ

  8. Posted April 27, 2014 at 4:55 pm | Permalink | Reply

    I forgot to end this post with my usual reminder:
    No matter what the federal regulations end up being, the states still EXPECT COLLEGES TO FOLLOW THEIR LAWS.
    Russ

  9. Karl Brevitz
    Posted April 27, 2014 at 11:59 am | Permalink | Reply

    Russ–thanks for your valuable updates throughout this process. Regarding licensure programs, I hope the intent is not to require institutions to research all the additional requirements for licensure beyond the degree that may exist in each state and notify the students from each state of those. Hopefully something generic like this (taken from an institutional on-line MSW website) would work?

    “What about licensure/certification?
    Licensure/certification is regulated individually by states and no two are exactly alike. Some states have different levels of licensure/certification. For example, here in [state] you may sit for the “LSW” or “Licensed Social Worker” examination when you finish your MSW. However, if you want to become a Licensed Clinical Social Worker (LCSW) you must work for 2000 hours in a mental health setting under the supervision of a social worker with an LCSW. In addition, for both levels of licensure in [state] you must take and pass separate examinations. For specific information contact the Association of Social Work Boards (ASWB) licensure/certification laws. In addition, go to your own state’s official website and search for the unit that regulates social work. Contact them for specific details. Do not rely on friends, faculty, or other sources! “They told me…” is no substitute for official information!”

    Probably less colloquially worded, and with some on-line mechanism for the students to indicate they have read and understood?

    Maybe also accompanied by a link to websites for States Boards of Social Work, Nursing, etc:

    http://www.swes.net/boards.html

    https://www.ncsbn.org/contactbon.htm

    –Karl Brevitz

    • Posted April 27, 2014 at 5:53 pm | Permalink | Reply

      Karl –
      The intent is that the institution inform the student if their program meets all the needs to be certified, licensed, or sit for a certification/licensure exam in the student’s state. A generic statement, such as the one you cited, would be considered insufficient.
      Russ

  10. Posted April 27, 2014 at 11:43 am | Permalink | Reply

    Russ, thanks to you, Marshall and your unindicted co-conspirators for all the heavy lifting on this issue and for keeping us informed.

    Was there any news and excitement related to the foreign locations rule?

    • Posted April 27, 2014 at 5:07 pm | Permalink | Reply

      Alan – Thank you.
      As for foreign locations…
      1) The original issue that we consider was in regard to the physical location of branch campuses and “other locations” in foreign countries. There were some real concerns about the language as first proposed, but the Department took suggestions from Marshall Hill and other negotiators. The new language received tentative approval and will have an impact on only a small number of colleges…only those setting up their own locations or branch campuses in other countries. Institutions that have a partnership with a foreign institution or conduct study abroad programs that don’t create an on-going physical location are also not included in the proposed language.
      2) For distance education in other countries, the proposed distance education language will clarify that the authorization and complaint process to be used is that of the Department’s home state.
      Russ

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