History of State Authorization

History

The federal regulation was brought to light following the Higher Education Opportunity Act (HEOA) of 2008. The following are milestones in the federal regulation:

The State Authorization Federal Regulation Chapter 34, § 600.9(c)

"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. An institution must be able to document to the Secretary the State's approval upon request."
Link to the c-CFR.

  • June 2010 - US ED releases its original "state authorization" language for comment as part of a required "negotiated Rulemaking" process. This process results in the regulations that US ED will use in enforcing the language passed by Congress. See the Federal Register beginning on page 34812. Note that there is no language about distance education. If it had been included, the distance education community could have submitted comments to guide the final regulation.
  • October 2010 - US ED releases comments, responses, and final wording. See the Federal Register beginning on page 66858. § 600.9(c) addresses distance education and state authorization. The final complete regulatory language (without comments of how this regulation will be interpreted) can be found in the Electronic Code of Federal Regulations.
  • March 17, 2011 - The US ED releases a Dear Colleague letter with clarifications on the distance education regulation, beginning with question 15.
  • April 20, 2011 - The US ED releases a second Dear Colleague letter. The letter moves the enforcement date to July 1, 2014, but institutions are expected to continue to make "good faith" efforts.
  • July 12, 2011 - The United States District Court for the District of Columbia struck down the distance education portion of the US ED's 'state authorization' regulations. The complete ruling is on the Court's website. The 'state authorization' section begins on page 35. Note, that only 34 C.F.R.  § 600.9(c) was vacated. Read more in the WCET blog post on the court ruling.
  • June 5, 2012 - The U.S. Court of Appeals agreed with a lower court ruling to 'vacate' the distance education portion (§ 600.9(c) of the U.S. Department of Education's 'state authorization' regulation. Read more in the WCET blog post on the court ruling.
  • May 2014 the  U.S. Department of Education's (US ED) Negotiated Rulemaking Committee was unable to reach consensus on a new federal state authorization for distance education regulation.  https://wcetblog.wordpress.com/2014/05/29/state-auth-negreg-what-happened/
  • July 2016 the U.S. Department of Education's (US ED)  released new proposed federal regulations requiring institutions to document that they have the proper approval to serve students in other states as well as provide specific general and individual notifications and disclosures.  Institution participation in a state authorization reciprocity agreement is deemed sufficient for approval.  https://www.gpo.gov/fdsys/pkg/FR-2016-07-25/pdf/2016-17068.pdf
  • For more information and a complete listing of the U.S. Department of Education "Dear Colleague" letters.


Court Ruling Vacating Distance Ed Portion of State Authorization Federal Regulation

On July 12, 2011, the United States District Court for the District of Columbia struck down the distance education portion of the U.S. Department of Education's (US ED) 'state authorization' regulations. The decision was a result of a lawsuit brought by the Association of Private Sector Colleges and Universities. The complete ruling is on the Court's website. The 'state authorization' section begins on page 35. Note that only 34 C.F.R. § 600.9(c) was vacated.  

On June 5, 2012, the U.S. Court of Appeals agreed with a lower court ruling to 'vacate' the distance education portion (§ 600.9c) of the U.S. Department of Education's 'state authorization's regulation. 

Because the regulation was struck down on procedural grounds, the  U.S. Department of Education may reinstate regulations for the state authorization of distance education if the proper procedural requirements are followed.

 In July 2016, the U.S. Department of Education (US ED)  .U.UUreleased the new proposed regulations for state authorization of distance education.  A comment period was open for 30 days closing August 24, 2016.

The new federal regulations were not released by October 31, 2016 therefore the implementation of any new regulations will not be implemented until at the earliest July 1, 2018.  It is expected that the regulations will be released and institutions should start considering how to put processes in place to achieve the required compliance.

What does this mean?

Many hailed the rulings as the death of state authorization. It is not - very far from it!

  • The US ED is NOT currently enforcing the state authorization regulation. Due to the Court order, the Department cannot enforce § 600.9(c). Therefore the previous deadline of July 1, 2014 is no longer going to be enforced.  However, a new deadline as early as July 1, 2017 may be put in place for new federal regulations yet to be released.
  • State Regulations Are Still in Place. The state regulations predated federal regulation § 600.9(c). Those regulations are unaffected by the rulings and are still in force. There is now heightened awareness that institutions are operating in states without authorization. WCET advocates that institutions be compliant in states where they serve students regardless of the status of the federal rule.  Compliance may be achieved by individual state license/registration/exemption or for many activities by participation with the State Authorization Reciprocity Agreements (SARA).
  • State Authorization Reciprocity Agreements (SARA)- As of August 31, 2016, 42 states plus the District of Columbia have been accepted to SARA and over 1000 institutions are SARA institutions. 

Compiled by:

Russ PoulinRussell Poulin
Director, Policy and Analysis
WCET - WICHE Cooperative for Educational Technologies
rpoulin@wiche.edu
Phone: (303) 541-0305

 

Marianne BoekeMarianne Boeke
Senior Research Associate, NCHEMS
marianne@nchems.org
Phone: (303) 497-0357

 

NOTE: This information is not endorsed by the U.S. Department of Education. Information and advice provided on these pages is not guaranteed. Given the myriad of regulations and understandings about their meaning, these pages represent our best interpretation of what we have learned. If you see information that appears to be incorrect, we invite you to notify us.