New State Authorization ‘Dear Colleague’ Letter NOT Focused on Distance Ed

Earlier this week, the U.S. Department of Education released a new “Dear Colleague” letter regarding the upcoming deadlines regarding state authorization.  The letter was sent to the attention of the “State Education Agency Administrators” and the governors of each state.  Thank you to Al Lind of the Kentucky Council on Postsecondary Education for alerting me to this letter.

Bottom line: I don’t think that the information in this letter will have any immediate impact on the distance learning community.

I wanted to alert you to the letter as I have heard that there has been confusion as to its meaning.  State authorization is often mentioned only in the context of distance learning and there may be those who think this letter set new dates for federal enforcement of state authorization regulations.  This is not the case.

I talked to Sophia McArdle of the Department of Education to gain assurance that this letter was not aimed at distance education. She declined to say if or when any further distance education guidance might be coming.  I am hearing that the Department of Defense will soon require proof that an institution is authorized in a state in which it serves military personnel.  More on that as we hear the details.Photo of the U.S. Capitol dome, a U.S. flag, and the statute of a lion

The confusion caused by this letter may have been fueled by a brief issued by the National Governors Association on January 17th, which urged the state’s top executives to: “…consider calling for a review of current state laws and regulations surrounding authorization of online programs.”   I could see how both activities in the same week could lead people to think that there had been new action taken on distance education regulations.

 A Reminder:  § 600.9(c) on Distance Education
It was federal regulation § 600.9(c) that focused on distance education: “”If an institution is offering postsecondary education through distance or correspondence education to students in a State in which it is not physically located or in which it is otherwise subject to State jurisdiction as determined by the State, the institution must meet any State requirements for it to be legally offering distance or correspondence education in that State.”

This regulation was vacated by the federal courts and the Department has said that it is not enforcing this regulation.  I still hear people cite the need to comply by July 1, 2014 that was an outgrowth of that regulation.  Since that date was tied to the vacated regulation, that date is no longer in force.  There is no federal July 1, 2014 deadline for distance education.

Since the federal regulation was vacated on technical grounds, it is my opinion that we will see this regulation (or some forms of it) return in the future.

Meanwhile, states still expect institutions to follow their laws…and expect you to be in compliance before serving students in their state.

 § 600.9(a) and § 600.9(b) – The Rest of the State Authorization Regulation
These two sections of the federal regulations are not focused on distance education and are the subject of the recent “Dear Colleague” letter.  It focuses on what the state must do to be able to authorize an institution, including having third-party complaint processes and identifying authorized institutions by name.

I talked to Greg Ferenbach of Dow Lohnes about this issue this week.  He knew of some state that had few regulations to authorize institutions within their own borders.  I know of some states in which their regulations did not cover all institutions in the state and they had to make some adjustments to regulations and/or laws.

The states were supposed to address the new federal requirements and cover all institutions in their state by July 1, 2011.  The states had two chances to request extensions.  The new “Dear Colleague” letter reminded states that the end of a second extension will be June 30 of this year.

In Conclusion
These regulations are more focused on institutions within the state than on distance education.  However, I would not be surprised to see the Department bring back some form or regulation for distance education.  If you are asked about this “Dear Colleague” letter, tell them that the state needs to make sure that its authorization rules meet the federal requirements.

Thank you,Photo of Russ Poulin
Russ

Russell Poulin
Deputy Director, Research and Analysis
WCET – WICHE Cooperative for Educational Technologies
rpoulin@wiche.edu
wcet.wiche.edu

Twitter:  wcet_info and RussPoulin

10 Comments

  1. Blake
    Posted June 4, 2013 at 8:02 am | Permalink | Reply

    Is there a deadline for institutions to comply to a state’s regulations? If an institution is in the process of making good faith efforts to gain compliance is the institution not allowed to offer courses to students in the state in which good faith efforts are being made?

    My main question: are there any deadlines in place for institutions that are making efforts to comply in states in which they offer distance education. Is there no longer penalties (federal wise such as loss of title IV funds) if an institution is not in compliance by a certain date. Thanks so much! All of this is so helpful.

    • Posted June 4, 2013 at 10:21 am | Permalink | Reply

      The deadline to comply to a state is up to each state…in short, they want you to be in compliance BEFORE you serve the first student in their state. The state’s are not looking at ‘good faith’ efforts. You are either in compliance or you are not. For the states, the deadline is NOW.
      The penalties that states can apply to a non-complying institution vary by state. Typically, if a state finds you out-of-compliance, their first step is to try to get your institution into compliance. Penalties are only an option if you continue to defy the state.

      • Blake
        Posted June 4, 2013 at 10:33 am | Permalink

        Thanks! These blog is an amazing resource.

  2. Martin
    Posted February 21, 2013 at 10:45 am | Permalink | Reply

    Disclaimer: these questions and comments are my own and do not reflect in any way the opinions of the University in which I work.

    My question comment is on “physical presence….haven’t states already defined “physical presence” by the way they collect taxes? A “nexus” has to be established in that state before you are required to collect taxes for that state. For example it’s not simply ” we collect taxes because our Maryland residents purchase goods over the internet from you Florida – we define that as physical presence”. I think the same principle and definition of the tax physical presence or “nexus” should apply to the State Authorization’s definition for each state otherwise it’s contrary to that State’s laws. Thoughts? Corrections? If this were done wouldn’t it simplify the burden for those Universities who’s only presence is online education?

    • Posted February 21, 2013 at 1:20 pm | Permalink | Reply

      Martin –
      They have defined physical presence for taxes, but are allowed to define it in different ways for different purposes. Much like “state of residency” might mean one thing for voting, but might be completely different for in-state tuition. And some states do collect taxes for sales over the Internet.

      Russ

      • Martin
        Posted February 21, 2013 at 2:11 pm | Permalink

        Thank you! I certainly understand it’s used in different contex but since the taxes and distance ed both incorporate the use of the internet – shouldn’t the definition and the “nexus” test be the same? At any rate, I trust greater minds have reviewed this matter diligently and I thank you for your response!

  3. Posted February 4, 2013 at 3:21 pm | Permalink | Reply

    Thank you to Mike Goldstein of Dow Lohnes who sent along the following further clarification:

    “While the (relatively) new Federal regulations regarding “home state” authorization apply primarily to the “home” – that is, the main – campus of an institution, it has always been the case that if an institution establishes a physical teaching facility at another location, and if more than 50% of a program leading to a degree or certificate can be earned at that location, that place is a regulatory “additional location” and must be approved by ED in order for students enrolled there to be eligible to receive Federal student aid. In order to be approved by ED the institution must show that the location is approved by the school’s institutional accreditor and by the state authorizing agency for the state in which the facility is located.

    For institutions which have “regular” Title IV Program Participation Agreements, this requires the institution to notify the Department by making an entry on its electronic record at ED. If the institution holds a Provisional Program Participation Agreement it must notify ED and receive written approval before any Title IV funds may be disbursed to students. Failure to do so can result – and has resulted – in very, very substantial liabilities being assessed by ED.

    This requirement has nothing at all to do with the distance learning state authorization regulations that were struck down by the Federal court. It has been on the books for many, many years, and ED has been known to enforce the requirement that sites have all necessary approvals. Including state authorization, and that it has been duly notified – and, in the case of a Provisionally certified institution, that it has received affirmative ED approval. There have been several cases in recent years where non-profit and public universities have had to repay millions of dollars because of a failure to make proper notifications.

    An institution’s financial aid director should be keenly aware of this provision. It is extremely important that it not be confused with the presently inoperative distance learning state authorization rule.”

  4. Barbara Beno
    Posted January 25, 2013 at 11:48 am | Permalink | Reply

    Thanks, Russell. This is helplful.

    Barb

  5. Tom Dolan
    Posted January 25, 2013 at 9:27 am | Permalink | Reply

    Russ, Just to make sure I’m understanding this correctly, please let me know if the following is correctly stated:

    “The vacated July 1, 2014 deadline was for institutions to be able to prove they were authorized in states in which they had distance education students; but there is still a separate June 30, 2013 deadline in effect for states to have regulations and procedures in place authorizing institutions within that state. A primary difference is that the vacated deadline was about distance ed programs, but the June 30, 2013 deadline is about higher education institutions.”

    Correct?

    Thanks!

    Tom Dolan

    • Posted January 25, 2013 at 9:47 am | Permalink | Reply

      Tom –
      Looks like you have it pretty well down…

      The July 1, 2014 deadline pertained to offerings in other states. It emerged from 600.9(c), which was the language that was vacated. Since 600.9(c) is vacated, so is the deadline. We should cease referencing it as it is now meaningless.

      The regulations in 600.9(a) and 600.9(b) were not part of the lawsuit and are still in force. Those regulations focused more on what criteria a state needed to have in place in order to be able to authorize institutions. The states were to have had met these obligations by July 1, 2011, but they could ask for two one-year extensions. If a state took both extensions, the final, final deadline is July 1, 2013. This is really a reminder to the states that they need to meet those criteria by this coming July 1 for the institutions that they approve to still be able to receive federal financial aid.

      An example taken from a Western state…there is a religious institution that was founded prior to when the territory become a state. In all these years, the state never had a process to authorize that institution. As a result of this regulation, the state and the institution developed a way for the college to be authorized by the state. Therefore, the institution remains eligible for federal financial aid. The institutions that need to worry about this are those in a similar situation in which they were never approved in a state – or – if your state has not met all the criteria outlined (like a third-party complaint process), your institution could be at risk. In the latter case, I would hope that the Department would think twice before labeling all institutions within a state ineligible for aid.

      Russ

3 Trackbacks

  1. […] “New State Authorization ‘Dear Colleague’ Letter NOT Focused on Distance Ed” and a follow-up post were among the most popular state authorization postings.  Even with the views on this post, I still talk to people every week who think that there is a July 1, 2014 federal deadline for state authorization for distance education programs. There is not.  I’ll be following up on what is covered in the July 1 deadline in the next few weeks. […]

  2. […] for aid over some technical requirements.  Earlier this year, Dr. Sophia McArdle of the Department assured us that no student would lose aid because of this rule.  I know that Sophia has been working hard to help states meet this […]

  3. [...] letter that was released by the U.S. Department of Education earlier this year.  At that time, I blogged that this issue is NOT about distance education.  That remains the case.  I talked to Sophia McArdle, the Department’s point person on [...]

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