Navigating the Current State Authorization Kerfuffle for On-Campus Instruction

This week both the Chronicle of Higher Education and Inside Higher Ed have reported on a developing issue with the federal regulations on state authorization. From your emails to me, these stories have been a bit confusing and confounding to many of you.  Some people are worried about losing their federal financial aid for students. This gave me an opportunity to do my best to clarify the issue and relieve (I hope not heighten) your concerns.

Before getting into the details, let me start with two main points:

• The current focus on state authorization is not about distance education.
• The Department of Education does not intend for this current focus on state authorization to lead to students not getting aid.

  

The current issue is related to the ‘Dear Colleague’ letter that was released by the U.S. Department of Education earlier this year.  At that time, I blogged that this issue is NOT about distance education.  That remains the case.  I talked to Sophia McArdle, the Department’s point person on authorization issues, recently and she reconfirmed that point with me.  In brief, the distance education section of the regulation (§ 600.9(c)) has been vacated by the federal courts and cannot be enforced unless the Department takes further action.  They have yet to do so.

If not about distance education, who does it cover?

It’s mostly about on-campus instruction.  The actions cited by the Chronicle and Insider Higher Ed are about federal regulations § 600.9(a) and (b), which cover what the state must do to be able to authorize institutions that are headquartered (my term, not theirs) or have a physical location in that state.  Among other requirements, the states must have third-party complaint processes and must identify authorized institutions by name.

States were expected to have their authorization processes in compliance with these regulations by July 1, 2011.  They could request two extensions, which means the final deadline is July 1, 2013.

With the final deadline approaching, the recent concerns being raised by the Department are aimed at some types of institutions over others.  From here it gets complex and I will not explore every possible option, but I will highlight the two broad categories into which the regulation divides institutions.  The following table provides the definitions of the two types of institutions and the approval processes that may or may not be used for that type of institution.  Note that in the column headings I provide the regulatory sections and my own titles for each category.

	Column A § 600.9(a)(1)(i) Public (and, Perhaps, other) institutions	Column B § 600.9(a)(1)(ii) Proprietary (and, Perhaps, Private) Institutions
Defining the type of institution	“established by name as an educational institution by a State through a charter, statute, constitutional provision, or other action issued by an appropriate State agency or State entity and is authorized to operate educational programs beyond secondary education…”	“established by a State on the basis of an authorization to conduct business in the State or to operate as a nonprofit charitable organization, but not established by name as an educational institution under paragraph (a)(1)(i) of this section.”
Allowable approval process	“complies with any applicable State approval or licensure requirements, except that the State may exempt the institution from any State approval or licensure requirements based on the institution’s accreditation by one or more accrediting agencies recognized by the Secretary or based upon the institution being in operation for at least 20 years.”	“may not be exempt from the State’s approval or licensure requirements based on accreditation, years in operation, or other comparable exemption.”

Public institutions receive more latitude in state approval processes

For the most part, Column A is aimed at public institutions. This is debatable as the phrase “or other action issued by an appropriate State agency or State entity” could cover a wide range of activities used by the state to recognize other institutions. In any case, I have yet to hear of an instance in which a public institution has been mentioned as having its authorization questioned under this regulation.

Proprietary (and perhaps, private) institutions need to take note

Column B definitely covers proprietary institutions and may cover some private institutions.  Any concerns that I have seen raised by the Department have been for the processes for approving these types of institutions.  But, I have not seen all of the concerns that they have raised.

What types of concerns have been raised?

The two main concerns that I have seen (there may be others) raised by the Department are:

• It appeared that some states were exempting institutions that the Department felt should have fallen in the Column B definition above.  Florida has been in the news about this, but I believe that they were able to show that there was more to their process than a simple exemption.  This is a problem with the regulation as it disallows several exemptions for institutions defined in Column B, but is silent on what additional authorization actions would suffice.
• Some states licensing procedures did not distinguish between secondary and postsecondary institutions.  The states needed to be more specific as to whether the institution was authorized for postsecondary education.

My advice

If you think your institution might be in Column B above, check the wording in the regulation and check the procedures of how you were authorized in your state.  If you have a concern, work with the authorizing agency in your state.  If there are sufficient concerns, have your authorizing agency contact Dr. Sophia McArdle at the Department of Education to ask for a review of their procedures.

VERY IMPORTANT:  Sophia is about six weeks behind in responding to these queries.  Let’s help her out, which will help you out.  Only the authorizing agency should contact her, not each institution. She’s trying to respond to each institution, but that is setting her way behind.  Also, make sure that the agency has done the research it can and has very specific questions to ask Sophia. Following these steps will expedite the process for everyone.

This is not about denying aid to your students

Finally, I’m returning to the second bullet in my opening.  Dr. McArdle assured me multiple times that the Department of Education does not intend for this current focus on state authorization to lead to students not getting aid.  You would not know that from reading the Chronicle or Inside Higher Ed articles.  Sophia assured me that she is more interested in getting state processes into compliance than in punishing institutions and students.  I believe her.   Could the Department have handled this better and provided clearer guidance?  Definitely.  It’s not time to panic, but authorizing agencies should take this seriously.

So what about distance education?

As you may recall, the federal courts vacated the regulation regarding the federal state authorization requirements for distance education.  The Department said that it will not enforce that regulation.  We should remember that the regulation was struck down on a technicality  and the Department could decide to reinstate it.  The decision on when (or if) to do so has been delayed due to the massive turnover in the postsecondary leadership at the Department.  As these decisions are made, WCET will keep you informed.

The bottom lines for distance education…

• I keep getting asked about the July 1, 2014 or July 1, 2013 federal deadlines for state authorization institutional compliance for distance education programs.  Since the distance education regulation was vacated, there is no regulation and, therefore, there IS NO DEADLINE.
• As was true before the Department got involved and continues to be true today, states expect you to follow their regulations prior to serving students in their state.

Watch for my coverage from the national meeting on state authorization reciprocity that will be held on April 16 & 17.

This keeps getting more fun, eh? And I got to use the word “kerfuffle”!!

ADDENDUM APRIL 6, 2013:  This post has sparked several conversations in the last day.  A couple points to clarify:

1. Column A v. Column B:  I may have been a bit too subtle in my classifications. There could be a public institution that is not in column A, but most are.  Alternatively, there are several private institutions that have state charters (especially older institutions when that was a common way of recognizing them) or others like Western Governors University that have special recognition in a state.  For your institution, be sure to read the language for federal regulations § 600.9(a) and (b) and carefully determine where your institution fits.
2. Proceed in All Haste in Getting Clarification from the Department of Education:  While Dr. McArdle is very clear that the Department is not interested in seeing institutions and students lose aid, it’s a bad idea to have your institution or students having any exposure at all on this issue.  If your authorizing agency is not sure that its rules are acceptable, it should request an opinion from the Department.  Alternatively, we need another extension or more clarification on the regulation as a whole.

Russell Poulin
Deputy Director, Research and Analysis
WCET – WICHE Cooperative for Educational Technologies
rpoulin@wiche.edu
wcet.wiche.edu
Twitter:  wcet_info and RussPoulin

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