State Authorization of Distance Education

In December 2016, the Department of Education released final regulations regarding the state authorization of distance education programs and foreign branch campuses. The final regulations will go into effect on July 1, 2018.  Subsequently, however, the Trump Administration published a new rule that delays implementation of the distance education regulations for two years, until July 1, 2020. 

According to the Department, the delay is intended to allow sufficient time to conduct negotiated rulemaking to revise the regulations. This renegotiation is intended to address concerns raised by the higher education community about the impact of the regulations on students participating in out-of-state online education programs, and to address confusion among institutions regarding implementation.
 
The final regulations are more than six years in the making and build upon a set of proposed regulations released in July 2015. NAICU had put together a briefing document that outlines the key points of the proposed rule. The final regulations are very similar to the proposed regulations with only a few minor changes.
 
In short, the final regulations:

  • Require institutions 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.
  • Provide a college the ability to receive state authorization via participation in a state authorization reciprocity agreement.
  • Define the term “state authorization reciprocity agreement.” Though the definition is relatively straightforward, it does contain the confusing clause that any state authorization reciprocity agreement “does not prohibit any State in the agreement from enforcing its own statutes and regulations, whether general or specifically directed at all or a subgroup of educational institutions.” What this definition will mean for the most comprehensive state authorization reciprocity agreement, NC-SARA, remains to be seen.
  • Require institutions to document individual state processes for resolving student complaints for students enrolled in programs offered via distance education.
  • Require foreign branch campuses to be authorized by an appropriate government agency of the country where the campus is located and, if offering at least half of an educational program at the foreign location, be approved by the institution’s accreditor and reported to the home state.
  • Require institutions to provide both public and individualized disclosures to enrolled and prospective students regarding its programs offered solely through distance education or correspondence courses. 

About

The state authorization of distance education programs was originally part of a broad package of program integrity regulations issued in 2010 by the Department of Education.  The intent of the regulations was to crack down on unscrupulous higher education providers.
 

History

The regulation of state authorization of distance education programs was originally included in the Department of Education’s 2010 program integrity regulations. Due to various legal and operational roadblocks, final regulations governing state authorization of distance education programs have been delayed multiple times over the years.

In 2011, the distance education piece of the regulations was struck down by a federal judge. The Court ruled that the Department had violated the Administrative Procedures Act by failing to include the distance education requirements in the overall state authorization regulations made available for public comment. The action was upheld on appeal in June 2012.

As a result, the Department of Education was forced to return to the negotiated rulemaking table in order to develop regulations related to the state authorization of distance education, which it did in March 2014. Citing the complications associated with the development and implementation of the distance education regulations, Under Secretary Ted Mitchell announced in June 2014, that the Department of Education would “pause” on the state authorization rule on distance education.

After a two-year hiatus, the Department of Education released a new set of proposed regulations in July 2016. The final regulations were scheduled to go into effect on July 1, 2018, but the Department has once again delayed implementation of the distance education portion of the regulations until July 1, 2020. (The regulations regarding state authorization of foreign branch campuses are not subject to this delay and went into effect on July 1, 2018.)

According to the Department, the delay is necessary to allow sufficient time to consider revisions to the regulations, and the Department has announced its intention to establish a negotiated rulemaking committee for this purpose. The Department is currently soliciting public comments and plans to hold several public hearings on its negotiated rulemaking proposal. After the Department has had an opportunity to review the comments made at the hearings and in written submissions, the agency will announce the specific topics that will be the subject of negotiated rulemaking.

Legislation to repeal the regulations related to state authorization of distance education has been introduced in each of the last several congressional sessions.  Most recently, provisions to repeal the regulations are included in the House Republican proposal to reauthorize the Higher Education Act.

In response to the multiple delays in implementation of the state authorization of distance education regulations, 48 states, and more than 1,000 institutions, have joined the State Authorization Reciprocity Agreement (SARA) as a means to ease compliance with the potential regulations.

What You Can Do

  • Determine whether your institution is located in a state participating in the State Authorization Reciprocity Agreement (SARA) and decide if you wish to become a participating institution, if located in a covered state.
  • If not in a SARA state, review your student profiles to determine whether or not you need to be authorized in another state.

NAICU Contact

Jody Feder: Jody@NAICU.edu
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