Untangling federal rules for online learning

The On-Ground Rule has been the subject of significant confusion and controversy.

The most significant controversy centered primarily on how ED determines which part of the test applies – in other words, which institutions have been “established by name as an educational institution in a State,” and which have been established simply “to conduct business or operate as a nonprofit charitable institution.”

Specifically, it is still not clear what constitutes an “other action” by a state that would satisfy the second test.

ED released a DCL in August 2013 to provide at least some clarity on this issue. The August DCL provided two concrete examples of “other action” that the Department may find acceptable:

  1. Evidence that the institution is approved “by name” to participate in a state grant program.
  2. Evidence that the institution has an articulation agreement with an in-state public institution for transfer students to receive credit at the public institution.

Institutions may also submit “similar documentation to the Department for review,” but the DCL does not provide any guidance as to what documentation would be considered similar.

Despite these attempts to clarify its position, confusion still reigns regarding the On-Ground Rule because ED has not definitively identified which states have insufficient authorization processes. ED’s informal guidance has been largely inconsistent and reports that ED considers for-profit institutions to be ineligible for authorization under the first test have caused additional confusion. Such a position is not presented in the DCL, and is without any apparent basis in the Higher Education Act or applicable regulations. (See Doug Lederman, Differentiation vs. Discrimination, Inside Higher Education, Oct. 13, 2013).