The Federal State Authorization for Distance Education Regulation Still Stands
Published by: Lindsey Rae Downs | 4/12/2017
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.”
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:
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?
Four reasons why follow:
Is it easy? No.
Is it the cost of doing business? Yes.
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.