The Federal State Authorization for Distance Education Regulation Still Stands

The federal state authorization for distance education regulation released in December 2016 will likely survive a little longer. Late last year, we reported that this federal regulation would likely be a victim of the Congressional Review Act (CRA). That rarely-used Act allows Congress to remove recently released regulations simply by passing a bill through both houses by a simple majority and having it signed by the President.

Vince Sampson, attorney with Cooley, LLP, informed us last week that: “It appears that Congress may have exhausted the number of CRA bills they can (or wish to) pass. The politics of CRA legislation are complicated, particularly with the Senate, and it appears that they are moving on to other battles.”

This leaves us with a new refrain: “The regulation is the regulation until it is not the regulation.”

The Fate of a Trio of Regulations Hated by the Deregulators

On January 30 2017, a notice in the Federal Register announced a delay in the effective date of some other regulations so that the Department of Education could “review” them. In that notice, there was a paragraph stating that further actions would be forthcoming on three different regulations:

• Teacher Prep – The expanded requirements for states to review programs that prepare K-12 teachers have now been completely removed via the Congressional Review Act and the President signed the resolution on March 27, 2017.
• Borrower Defense – This complex set of regulations defines “acts or omissions of an institution of higher education a borrower may assert as a defense to repayment of a” federal student loan. I’ve heard that this regulation will be subject to additional future rulemaking or actions to align it with the priorities of the current Administration.
• State Authorization – Neither the Department nor Congress have released details on the fate of this regulation.

The Dilemma Facing Colleges

The enforcement date for the state authorization regulations is July 1, 2018. By that date, each institution must be able to demonstrate that it is authorized in any state in which it enrolls student to whom it disburses federal financial aid. More problematic is a set of notification requirements for institutions that enroll students in programs that lead to professional licensure or certification in other states. Institutions need to be able to notify students if their distance program meets the academic requirements of the professional oversight boards in those states.

Getting that information can be challenging. The Department of Education massively underestimated the time it takes to determine these requirements and, if needed, to navigate the approval process in each state. Some institutions have waited to move forward on this work, hoping the regulation would go away. Should they proceed or wait?

Our Advice to You

Don’t wait.

Four reasons why follow:

1. First, if you are a SARA (State Authorization Reciprocity Agreement) institution, a similar notification is already required (SARA Manual, p. 27) of SARA member institutions. The notification must be done in one of two ways:
   “a. The institution may determine whether the course or program meets the requirements for professional licensure in the state where the applicant or student resides and provide that information in writing to the student, or”
   “b. The institution may notify the applicant or student in writing that the institution cannot confirm whether the course or program meets requirements for professional licensure in the student’s state, provide the student with current contact information for any applicable licensing boards, and advise the student to determine whether the program meets requirements for licensure in the state where the student lives.”
   Some have interpreted the second bullet to mean that you can just not have done the work and you can say you “don’t know.” That is not the intent. In conversations with Marshall Hill, Executive Director of NC-SARA, that option is intended to cover only those cases where the institution has made every reasonable effort to determine whether its programs meet licensure requirements in the particular state and cannot obtain that confirmation from the relevant licensing board. According to Dr. Hill: “We’ve always regarded this as a ‘last resort’ option, only available after all attempts to determine whether a program meets the state’s requirements have failed. This is important information that states and institutions should be able to provide to students.”
2. Student Action. Second, you may wish to avoid lawsuits from students and actions by states for misrepresenting your program. Students are rightfully angry to learn they cannot complete their internship or sit for a licensure exam after their institution has collected tens of thousands of dollars from them.
   One of the new federal regulation’s notification requirements is in regards to a student who decides to enroll in a professional program even after learning that the program DOES NOT meet the licensure prerequisites for his or her state. The institution is expected to obtain a written statement acknowledging that the student understands that the institutions does not have the approval. Some institutional personnel have gone apoplectic over that requirement. I disagree. It is legal protection for the institution. While no protection is perfect, having written documentation that the student was notified and understood that notification is much better than having no evidence in the event of a future lawsuit.
3. The third reason is that it is the law.
4. The fourth and final reason is that it is the right thing to do.

Is it easy? No.

Is it the cost of doing business? Yes.

Where Do We Go from Here?

We will continue to keep you informed about any developments.

As for the federal state authorization regulation for distance education, my guess is that it will likely be addressed again as part of the reauthorization of the Higher Education Act of 1965. Some hearings have already been held on reauthorization. I hear that reauthorization will not be a priority for Congress until next year. That’s my guess, as well, but I’ve been pretty bad at guessing lately. There are other options, including a possibility of a delay in enforcing the regulation. The problem is that many of those options would require action by the Department (there are almost no policy staff in place) or by Congress (they are busy with other priorities).

Additionally, we have many questions about how certain provisions of the regulation will be interpreted or enforced and feel that some language is just plain incorrect. We waited on formalizing our observations because it appeared the regulation might be killed. Now that it appears to be surviving the Congressional Review Act ax, watch for more information on our questions and concerns. If you have some you would like us to include, let me know.

Meanwhile, remember that the regulation is the regulation until it is not the regulation. And, even if the federal regulation goes away, the state regulations remain in force.

Many thanks to Cheryl Dowd, Terri Taylor Straut, Marianne Boeke, Greg Ferenbach (Cooley, LLP), and Vince Sampson for their contributions to this post.

Russ

Russell Poulin
Director, Policy & Analysis
WCET – The WICHE Cooperative for Educational Technologies
rpoulin@wiche.edu    @russpoulin

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