Department of Education State Authorization for Distance Ed Regulations-A First Look

This morning the U.S. Department of Education released its proposed new regulations (press release, proposed regulations) for the state authorization of distance education programs. Institutional personnel and the public are invited to submit comments by August 24.

This post will focus on the contents of the proposal. In this post, we will:

  • Summarize the major compliance requirements.
  • Identify regulations that are new or have changed from previous versions. As you may recall, I was part of the Department of Education’s Negotiated Rulemaking team in 2014 and have a long-standing perspective on these regulations.
  • Identify language that we currently think will need more definition.
  • Highlight possible implications for institutions and states.

The words "state authorization surrounded by all the state names.

Notice: Just because your institution is a member of SARA does not mean you can ignore all of this.

 

Implementation Timeline

Remember that these are proposed regulations that are out for comment. The final regulations may change.

If the Department wishes for these regulations to take effect on July 1 of next year (2017), it must release the final regulations by October 31 of this year. All signs point to the administration wishing to clear out the remaining regulations (such as this one) prior to leaving office. If they have trouble completing the final document, they could release it by the end of the year.

The regulation is silent on implementation dates, which could be different than the effective date. Even though the regulation would take effect next year, they could decide to have a grace period before enforcing the regulations. On the other hand, institutions have long known that they are expected to comply with state laws and enforcement could start as early as next year.

 

Institutional Compliance

You Must Demonstrate Compliance: To be eligible for Title IV funds. It is expected that: “an institution offering distance education or correspondence courses to be authorized by each State in which the institution enrolls students, if such authorization is required by the State…”

  • As part of your Title IV reviews, you need to be able to show that you have the proper authorizations in any state in which you are enrolling a student who receives Title IV funds.
  • The “if such authorization is required by the State” is a big change from the Negotiated Rulemaking discussions as this language no longer requires each state to create regulations if they do not currently have them.
  • Implication: Colleges will need to do a better job of identifying the location of students enrolled in distance education or studying face-to-face in other states who receive federal financial aid. This is true even if your institution is part of the State Authorization Reciprocity Agreement (SARA).

 

Reciprocity

Reciprocity Defined: The term “State authorization reciprocity agreement” is defined and is confirmed as a recognized path to authorization in other states.

  • Support for reciprocity has been in every draft and continues in this recommended language.

Consumer Protection: The definition of “State authorization reciprocity agreement” includes a provision that the agreement “does not prohibit a participating State from enforcing its own consumer protection laws.”

  • This is a new provision and probably arises from misinformation that has recently been circulated about the current SARA agreement. SARA allows states to prosecute fraud and misrepresentation claims in their own state.
  • Implications: The term “consumer protection laws” needs to be defined. If left to the states to define, then they could declare any requirement as “consumer protection” whether it is or not.

 

“Public” Notifications and Disclosure Requirements

The following “general” disclosures are required of those offering distance or correspondence students in other states. You can post these notifications and disclosures on your website. The proposed regulations define that these disclosures are required only for programs offered “solely” at a distance, which will limit the impact of this requirement since many programs are offered both on-campus and at a distance.

Authorization.  You must disclose the authorization that you have in that state and how you received it (through direct action with the state or through a reciprocity agreement).

  • This is new.

Student Complaint Processes: “Require an institution to document the State process for resolving complaints from students enrolled in programs offered through distance education or correspondence courses.”

  • You would be required to notify students how to submit complaints to both: a) the appropriate state agency and b) if different (such as in the case of reciprocity agreements) how the student may submit complaint in the state in which the student is located.
  • Notifying students about complaint processes in other states has been in regulation since 2011. We wrote about it and clarified it back then.
  • The further requirement to “document’ the State process for resolving complaints in each state is a bit confusing. Previous guidance (which is not technically void) allowed for a central repository of complaint contact information.
  • WCET is working with SHEEO to improve their list of state complaint processes. We will work to get a clarification from the Department and, if enacted, to create a resource to meet this requirement.

Adverse Actions. Notify the students of any adverse actions taken by a State or accrediting agency against an institution’s distance or correspondence activities in the past five years and  the year the action was initiated.

  • This is new.
  • Implication: The terms used by states and accrediting agencies are so varied that more clarification will be needed on this point.

Refund Policies. The refund polices that the institution is required to comply with in that State.

  • This is new.

Licensure and Certification Requirements. Does the program meet the requirements in the student’s State to allow the student to be licensed or certified or to sit for a qualifying exam.

  • This applies to programs that lead to licensure or certification in a profession, such as nursing, teacher education, or psychology.
  • This is a variation on language presented to the Negotiated Rulemaking Committee. At that time, the Department wanted to expand this requirement to ALL licensure or certification programs whether they were distance programs or not. This language limits the requirement to distance and correspondence activities. Furthermore, is also seems to limit this requirement to programs offered “solely” at a distance (excluding practica or internships), which will limit the impact of this requirement since many programs are offered both on-campus and at a distance.
  • In negotiations, we were able to get the word “academic” added to the language, so that it was clear that only the “academic requirements” were included. There are requirements (such as the applicant not being a convicted felon) in some professions that are beyond the institution’s control. In a conversation with Department staff yesterday, they intended to cover only those requirements within the institution’s control.
  • To quote: “For any State as to which an institution has not made a determination with respect to the licensure or certification requirement, an institution would be required to disclose a statement to that effect.”
  • Implications: Institutions will need to do more work in notification about licensure programs. We will need to ask questions about cases where licensure/certification boards will not opine on whether a program meets the State requirements.

 

“Individualized” Disclosure Requirements

Photo of a dictionary with the term "disclaimer" highlighted.

No disclaimers. We need to know where our students are and if the programs meet state requirements.

The institution will need to directly notify students (not just on the website or in the catalog) in any of the following scenarios…

Whether the Program Licensure or Certification Requirements. You will need to directly notify the student regarding whether the program does or does not meet requirements in the student’s state.

  • “To each prospective student, any determination by the institution that the program does not meet licensure or certification prerequisites in the State of the student’s residence, prior to the student’s enrollment…”
  • This is a variation on language discussed in rulemaking.
  • Marketing and website people do not like negative language, but they will have to deal with it.
  • If you enroll a student from a state in which you do not meet the requirements, you will need “to obtain an acknowledgement from the student that the communication was received prior to the student’s enrollment in the program.”
  • Implication: Better knowledge of both the student’s location and the requirements in those states in which you wish to enroll students is needed.

Adverse Actions. If a new adverse action is taken, students need to be notified.

  • This is a variation on language discussed in rulemaking.

Cease to Meet Licensure or Certification Requirements. If your program formerly meet requirements and now does not, students should be notified.

  • This is a variation on language discussed in rulemaking.

 

Face-to-face Instruction in Other Countries

Obtain Approvals in Other Countries: “Require that an additional location or branch campus located in a foreign location be authorized by an appropriate government agency of the country where the additional location or branch campus is located.”

  • This issue is separate from distance education and is about branch campuses in other countries. In the negotiations, it was clarified that this did not mean joint enrollment agreements that an institution has with an institution in another country.
  • Additional notification requirements about complaint processes are included.
  • Distance education in other countries is not referenced.
  • Implication: If you have an independent branch campus in another country, more compliance requirements are recommended.

 

Watch for more from WCET and the WCET State Authorization Network on this issue.

Disclaimer: This analysis was done quickly this morning. I apologize for any errors of misinterpretations.Russ Poulin holding a baseball bat.

Russ

Russell Poulin
Director, Policy & Analysis
WCET – The WICHE Cooperative for Educational Technologies
303 – 541 – 0305
rpoulin@wiche.edu    @russpoulin

 

If you like our work, join WCET!

*1:49pm Correction – Implementation timeline correct to July 1 of next year (2017) not this year. – CM

3 Comments

  1. Julie Woodruff
    Posted July 22, 2016 at 11:27 am | Permalink | Reply

    Thank you for the quick summary. This is very helpful!

  2. Alan Contreras
    Posted July 22, 2016 at 10:43 am | Permalink | Reply

    Russ, this is a good analysis. I have read the draft once and will read it again. It is very definitely a ramp-up of the Department’s consumer protection work. For some institutions the rule will raise no issues. For others it will be like being tossed a sack of gravel to carry uphill.

    With two possible exceptions I think it “tracks” very well with SARA and causes no problems for SARA providers. The first is the definition problem that you mentioned – they need to define what constitutes a state’s “consumer protection laws” for exactly the reason you mentioned – a state could claim that any law is in that category. It needs to be consumer protection laws “of general application” or some such language.

    The other issue is that the SARA provision for an institution to tell a student that it doesn’t know whether a program meets professional licensure requirements is not allowed, if I read it correctly. In this instance the rule, when final, will in effect supersede and render null that particular minor provision of SARA. I would like to see the Department include an “out” to be used in cases in which a licensing board refuses to tell a college in advance whether its program meets state standards. Yes, this has happened.

  3. Tina
    Posted July 22, 2016 at 10:28 am | Permalink | Reply

    Thank you, Russ, for this analysis. As always, you make complex matters easily comprehensible!

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  1. […] (press release, proposed regulations) by the U.S. Department of Education. In a recent post, I gave you a “first look” at the language, included some analysis about what is new, and commented on some […]

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