Untangling federal rules for online learning

To be protected by the federal stay in enforcement, institutions must obtain an extension letter from their state authorizing agency if the state has not met the federal requirements, or if there is a question about their authorization status under the two tests.

The extension letter must indicate that the additional time will allow the state to take steps to enable institutions to come into compliance with the On-Ground Rule.

How to Comply:  If you are authorized by a statute, charter, or constitutional provision in the state(s) in which you are physically located (as most public institutions are), you are likely already compliant with the On-Ground Rule. The same is likely true if you participate in a state grant program or have an articulation agreement with an in-state public institution.

If your authorization is based on a license or registration, the question is a little more complex.

If that license or registration is not based on years of operation or accreditation, it should be sufficient. But, if your institution only holds an exemption (such as the exemption that California provides for regionally accredited institutions), then it may not be sufficient.

Common Misconception 1:  “The federal court vacated the rule in APSCU v. Duncan, so ED can’t enforce the On-Ground Rule.

Fact 1:  The On-Ground Rule was left untouched by the decision that vacated the Distance Education Rule. It remains in effect, even though enforcement has, to some extent, been postponed.

Common Misconception 2:  “Since the May 2013 DCL delayed the implementation of the On-Ground Rule until July 1, 2014, I don’t have to worry about compliance until then.”

Fact 2:  The DCL delays the implementation of the On-Ground Rule, but requires institutions to obtain an extension letter from states that do not meet the On-Ground Rule’s standards. If your institution is not satisfactorily authorized in a state (in ED’s opinion), and does not possess an extension letter, the DCL does not offer any protection.

Think of the federal state authorization rule as two distinct rules. The Distance Education and On-Ground Rules apply to different activities (the On-Ground Rule applies to an institution’s physical locations only and the Distance Education Rule to its online offerings).

The Distance Education Rule was vacated (but may be on its way back) while the On-Ground Rule remains in effect. Distinguishing between these two federal state authorization rules is essential for keeping track of varying institutional obligations.

Greg Ferenbach is special counsel at the law firm Cooley, LLP.

This post originally appeared on WCET Frontiers. WCET accelerates the adoption of effective practices and policies, advancing excellence in technology-enhanced teaching and learning in higher education.