Navigating the Current State Authorization Kerfuffle for On-Campus Instruction
Published by: WCET | 4/5/2013
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 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.
Public (and, Perhaps, other) institutions
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:
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…
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:
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