In talking with institutional personnel, I’ve noted some confusion about different aspects of the federal government’s state authorization regulations.
There are still many who believe that the federal deadline to be in compliance for those offering distance education in each state is July 1 of this year. That is not so.
There is currently no federal deadline deadline for distance education, but there is another deadline that is explained below. Meanwhile, states expect institutions to be in compliance prior to performing any activities (such as advertising, enrolling students) in a state. Each state’s regulations are still in force.
By now everybody knows that one of the more controversial Program Integrity Regulations is the State Authorization Rule found at 34 C.F.R. § 600.9, which is the subject of a negotiated rulemaking beginning next week.
But what many do not realize is that the State Authorization Rule is actually two state authorization rules: the Distance Education Rule (now vacated) and the On-Ground Rule (still in effect).
Each rule addresses distinct aspects of an institution’s state authorization status and carries a different set of requirements. Failing to distinguish between the two rules can lead to confusion.
The distance education rule
Citation: 34 C.F.R. § 600.9(c)
Status: Not in effect – this rule was vacated by a federal court in 2011 (and the court’s decision was upheld in 2012 on appeal). ED is currently proceeding with a new negotiated rulemaking to potentially re-introduce the Distance Education Rule.
Summary: This is the rule that most institutions and the State Authorization Network (SAN) have focused upon over the past couple of years and that gave rise to the State Authorization Reciprocity Agreement (SARA).
In short, it required an institution to be authorized in any state in which it enrolls students into a distance education program if state law requires the institution to be so authorized. This rule did not require states to regulate institutions providing distance education and did not establish minimum criteria that states must use to authorize institutions. It simply required institutions to prove to the Department upon request that they have all necessary approvals as a condition to Title IV eligibility.
How to Comply: The Distance Education Rule was thrown out by a federal court in APSCU v. Duncan and ED is currently prohibited from enforcing it, but underlying state laws are entirely unaffected by the court ruling.
Those state laws are still in effect. So, failing to obtain authorization in a state where your institution is required to be authorized under state law is a violation of state law but generally not a violation of the federal requirements for participating in Title IV. (Misrepresenting your approval status, however, or failing to disclose the applicable complaint agency in any state, would violate the federal Title IV rules.)