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) released in 2010.
"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 (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
- December 2016 the U.S. Department of Education released the regulations for State Authorization of Postsecondary Distance Education, Foreign Locations. Effective date: July 1, 2018.
- February 2018 in response to a discussion with the U.S. Department of Education, WCET, NC-SARA and DEAC coauthored a February 7, 2018 letter to the Department to express concerns about the rules on state authorization that were set to go into effect July 1, 2018 (34 CFR Sections 600 and 668).
- May 2018 the U.S. Department of Education acknowledged the February 2018 letter in the Federal Register Announcement to propose a two year delay for the effective date of the regulations.
- July 2018 - The U.S. Department of Education announces two year delay of selected provisions of the 2016 Federal regulations including 34 CFR 600.2; 34 CFR 600.9(c); 34 CFR 668.50 until July 1, 2020.
- For more information and a complete listing of the U.S. Department of Education "Dear Colleague" letters.
Court Ruling Vacating Distance Ed Portion of the 2010 State Authorization Federal Regulation & Has Attempted to Reinstate
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 released on December 19, 2016. The effective date of the new regulations is July 1, 2018.
In May 2018 - the Department released an announcement of the Secretary's proposal to delay the effective date of the new regulations until July 1, 2020.
In July 2018 - The Department announced the two year delay of selected provisions of the 2016 Federal regulations including 34 CFR 600.2; 34 CFR 600.9(c); 34 CFR 668.50. The regulation for State Authorization of foreign locations of domestic institutions, 34 CFR 600.9 (d) was not delayed. The effective date of that provision remains JULY 1, 2018.
What does this mean?
- No Currently Effective Federal Regulation. Although institutions are legally obligated to be compliant with the state’s laws and regulations for the out-of-state activities of the institution, the effective date of tying that state regulatory obligation to compliance with a federal regulation to participate in title IV HEA programs, has been delayed.
- 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 and SAN advocate 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 July 1, 2018, 49 states plus the District of Columbia, Puerto Rico, and the US Virgin Islands have been accepted to SARA and over 1700 institutions are SARA institutions.
- State Authorization--An Introduction.
- State Approval Requirements.
- Getting Started with State Approvals.
- Student Complaints.
- Reciprocal Agreements.
Director, Policy and Analysis
WCET - WICHE Cooperative for Educational Technologies
Phone: (303) 541-0305
Senior Research Associate, NCHEMS
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.