In a “Dear Colleague” letter issued on July 27, the U.S. Department of Education revealed that it will NOT enforce the controversial distance education provision of the state authorization regulations.

To verify this news, Megan Raymond and I called Sophia McArdle of the U.S. Department of Education.  She is the new person responsible for interpreting the state authorization regulations.  Ms. McArdle confirmed that the Department will abide by the rulings of the District Court and the Court of Appeals and will not enforce the regulation.

This news surprised us as we had heard previously that the Department would find a way to enforce it.  Remember that the rulings of the Courts did not question the Department’s right to issue such a regulation. The Courts vacated the regulation because it found that the Department did not follow the proper rulemaking procedures when issuing it. If it wished to do so, the Department could have reissued the regulation using the proper procedures.

What Does This Mean for Institutions?

Three traffic lights with the left turn green and the two others red.
Institutions have been given the green light regarding the federal “state authorization” regulation, but still need to follow other state and federal rules.

For now, institutions will not need to worry about this federal regulation.  We will need to keep watch as it could possibly reemerge in future rulemaking or higher education reauthorization processes, but Ms. McArdle gave no hint of that being the case.

However, institutions are not completely off the hook.  In both the Dear Colleague letter and on the phone, Ms. McArdle was quick to remind us that institutions:

  • “must comply with the provisions found in § 600.9(a).”  This provision has more to do with an institution being authorized in its “home” state than with other states where it is serving students at a distance.
  • “continue to be responsible for complying with the State laws as they relate to distance education.”  We agree.  Institutions often overlook the need to follow state laws regardless of whether there is a federal requirement or not.
  • must continue to inform students about external complaint processes that we blogged about and provided additional follow-up last year: “The institution must also provide its students or prospective students with contact information for filing complaints with its accreditor and with its State approval or licensing entity and any other relevant State official or agency that would appropriately handle a student’s complaint.”

Questions Remain and We Need Your Help

In reading the Questions in the Dear Colleague letter, it is best to start with Question 7.  This question directly addresses the legal challenges and includes the announcement that the Department “will not enforce the requirements of § 600.9(c).”

Questions 1 through 3 are more pertinent to overall institutional eligibility.  Questions 4 through 7 are about “other locations and consortia.”  Once you understand that the distance education provisions will not be enforced, it is helpful to see that Questions 4 and 5 pertain more to programs that are physically in another state.  For the most part, Ms. McArdle confirmed that.  We did have some questions remaining about specific types of internships at a distance and how the Department would address those specific cases.  For Question 6 on consortia, our conversation got tied into a knot.  I’m still unclear if consortia operating at a distance will still need approval from each state with a consortium member for federal financial aid purposes. Hmmm…that seemed weird or maybe we weren’t on the same page.

In our conversation we realized that there are still several items for which more clarification is still needed.  Here’s where you can help.  Please read the Dear Colleague letter and provide us with questions that you have.  We’ll interpret and compile the questions.  This will help Ms. McArdle and the Department in being able to address a more limited number of questions.

Post your questions to this blog or send them to me at   Obtaining your questions and getting additional clarifications will help us all.  Please get your questions to us by the end of the day on Monday, August 6.

UPDATE as of August 17, 2012:
Thank you to everyone who submitted questions.  We created a compilation of those questions.
We met with Dr. McArdle via phone on August 16.  She said that the Department is unable to provide further comment or clarification at this time since the Courts remanded the decision back to the Department.  Since they just received it a few days prior, they did not have a timeline on when the Department would be able to comment.  The Department may still play a role in the future.  More to come.

On August 16th, we had a call with a Department representative to obtain more clarifications

Thank you.

Russ & Megan

Russell Poulin
Deputy Director, Research & Analysis – WCET

Megan Raymond
Manager Events and Programs — WCET

Join WCET!  Support our work on this issue.

Photo credit: Morgue file photo

9 replies on “USDOE Will Not Enforce Its Distance Ed State Authorization Regs, but Questions Remain”

This does not change much with regard to *what* colleges must do: they must still abide by state laws. What it changes is *who* will get on their case if they don’t: states, not feds. Some states do regulate the provision of distance-ed offerings into the state, others do not and in some it depends on which accreditor accredits the provider.

Also, if a state informs the DOE or an accreditor that a college is violating state law, I would expect action by the accreditor or the DOE.

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