The Department of Education released a Notice of Proposed Rulemaking last week to convene more negotiated rulemaking committees. This time the Department plans to take up issues related to a number of issues related to accreditation, distance education modalities and faith based education. Among the specific issues they aim to address, the Department plans to hold several negotiated rulemaking sessions to discuss
Requirements for accrediting agencies in their oversight of member institutions;
Requirements for accrediting agencies to honor institutional mission;
Criteria used by the Secretary to recognize accrediting agencies, emphasizing criteria that focus on educational quality;
Developing a single definition for purposes of measuring and reporting job placement rates; and
Simplifying the Department’s process for recognition and review of accrediting agencies.
Additionally the committee will take up issues related to State Authorization, Definition of a Credit Hour, the Definition of Regular and Substantive Interaction.
Public comments and recommendations are open until September 14, 2018.
DID THE U.S. DEPARTMENT OF EDUCATION MISS THE DEADLINE TO DELAY STATE AUTHORIZATION RULES?
Sure looks like it.
Following a confusing draft notice published in the Federal Register over the weekend, it seemed that the U.S. Department of Education was ready to delay a set of State Authorization rules that were scheduled to take effect on July 1, 2018. The rules, which apply to distance education providers such as online schools and colleges were to be delayed until July 1, 2020, according to the draft which was scheduled to be released on July 3rd. That date is significant as we’ve come to find out.
Clare McCann , Deputy Director for Federal Policy, Education Policy at New America pointed out the obvious point it seems everyone, myself included was missing. The 2016 State Authorization rules have in fact already taken effect as of… you guessed it. July 1st.
“The state auth distance ed story you missed: The rule is currently in effect!”
@usedgov missed the deadline, so it took effect July 1. So much for resolving confusion in the field. I’m willing to bet plenty of schools including all NC-Sara schools are out of compliance today.”
While she may not have been the first person to notice this, she was certainly the first to tweet it.
Later, Barmak Nassirian, Director of Federal Relations and Policy Analysis at AASCU clarified that since the final rule wasn’t published by July 1st, the Department will have to follow the rules in the Administrative Procedures Act which include “justifying a change in conformity with the SCOTUS 1983 State Farm Case, go through reg neg, and produce a final rule subject to the master calendar requirements of HEA”.
I have a feeling this isn’t the last we’ll hear about the State Authorization Rules, but all eyes are on Betsy DeVos and the U.S. Department of Education to see what their next move will be. In the meantime, absent any other guidance from ED, it seems that the follwing provisions have indeed taken effect:
CFR 600.2 – Definition of State Authorization Reciprocity Agreement
CFR 600.9 (c) – State Authorization Distance Education Regulations
CFR 668.2 – Definition of Distance Education
CFR 668.5 – Institutional Disclosures for Distance or Correspondence Program Regulations
CFR 600.9 (d) – State Authorization of Foreign Locations of Domestic Institutions
As required by the Higher Education Act, State authorization has been a longstanding requirement that necessitates state oversight of institutions. Each Title IV eligible institution has to be authorized in the state in which they are located as a condition for participation in Title IV Federal student aid programs. While all higher education institutions must have state authorization in the states in which they are physically located, there have been no federal regulations for distance education providers in states where the institutions are not located and since 2010, ED has been seeking tighter regulations.
Just before the holidays, the U.S. Department of Education announced final rules on State Authorization of Postsecondary Distance Education detailing new requirements for colleges and schools that offer online distance education programs to students physically located in other states to follow. The rule is scheduled to go into effect July 1, 2018 and requires institutions offering distance education to be legally authorized to operate and monitored by an appropriate state agency in each state where their students reside. For schools with a national presence, this requires a school to obtain authorization is nearly every state in the country. Fortunately, the new regulations recognize authorization through participation in a state authorization reciprocity agreement such as SARA (which now boasts as many as 45 states sharing reciprocity), as long as the agreement does not prevent a state from enforcing its own laws.
Here’s a summary of the new rules:
Student Complaint Process Documentation – Institutions must document the state process for resolving student complaints regarding distance education programs.
Disclosure Requirements – Institutions must provide public and individualized disclosures to enrolled and prospective students in distance education programs, including adverse actions taken against the school, the school’s refund policies, and whether each program meets applicable state licensure or certification requirements. Schools must also explain to students the consequences of moving to a state where the school is not authorized, which could include loss of eligibility for federal student aid.
Branch Campuses or Additional Locations in a Foreign Location Authorization – Foreign branch campuses or locations must be authorized by the appropriate foreign government agency and, if at least half of a program can be completed at the foreign location or branch campus, be approved by the accrediting agency and reported to the state where the main campus is located.
Read the Federal Register, which includes important preamble info here and be on the lookout for implementation guidance later this year.
New York’s State Education Department votes to participate in the “State Authorization ReciprocityAgreement” known as SARA
There are currently 43 states and districts participating in SARA and New York State has finally signed on. At the September 13, 2016 meeting of the NYS Board of Regents, New York State’s participation in the State Authorization Reciprocity Agreement (SARA) was approved.
The passage of this regulation allows schools and colleges in New York to offer distance and online learning courses to students from other states and for students in New York to obtain recognized credentials from schools located states that also participate in SARA. Until now, this is something that has not been allowed under N.Y. State law and makes it easier and less expensive for colleges to do business in New York.
According to a press release, State Education Department Commissioner MaryEllen Elia said “As a member of the reciprocity agreement, New York’s institutions of higher learning will save much-needed resources by only having to pay for SARA approval and participation once in New York State rather than individually to each state in which they would like to do business,”
“Savings for higher education institutions can help bring down costs for students as well as provide safeguards in the online marketplace.”
The move comes as the U.S. Department of Education inches closer to rolling out implementation guidance on new State Authorization Rules which were the subject of public comment this summer. The rules include new requirements for state authorization of online or distance learning programs, and for state authorization of branch locations in foreign countries. The proposed rules also would require schools to provide to students and prospective students a number of disclosures regarding their online or distance learning programs.
Still, several states including Florida, Kentucky, New Jersey, Massachusetts and Pennsylvania have not signed on with SARA, limiting state oversight and approval for distance education in those states.
Other states to recently join SARA include Delaware, Hawaii, North Carolina, South Carolina, Utah and Wisconsin. Washington D.C. which is not a State, also signed on. Still several states including Florida, Kentucky, New Jersey, Massachusetts and Pennsylvania have not signed on with SARA, limiting state oversight and approval for distance education in those states.