Department of Education State Authorization Regs – Reactions and What’s Next?

It has been a busy few days since the U.S. Department of Education released the final version of its “State Authorization of Postsecondary Distance Education, Foreign Locations” regulations. You can see Cheryl Dowd’s and my initial take on the final rules, in which we were fine with many of the provisions, but alarmed at the changes regarding reciprocity.

In this post, we thought you would like to see some of the reactions issued thus far…

1) National Council of State Authorization Reciprocity Agreements

In a statement released on Tuesday, the organization that manages the SARA agreement, finds the change to the reciprocity definition puzzling:

“A ‘reciprocity agreement’ that would satisfy ED’s definition strikes us as no reciprocity agreement at all.” 

We agree. NC-SARA concludes with:

“We will continue to review the implications of these rules and communicate with our partners in the SARA initiative and with others.”

2) Cooley, LLP 

Cooley has followed every aspect of state authorization rules for decades. On Tuesday, they joined us in the head-scratching about the Department’s flawed logic in changing the reciprocity definition:

“This approach flies in the face of the very purpose of SARA, (and any reciprocity agreement) which is to provide a common set of authorization laws and institutional standards to which all participating states would agree. This unexpected change could therefore undo years of work to create a streamlined system for state licensure of distance programs, replacing a patchwork of laws, rules, and requirements that were extraordinarily burdensome on institutions and provided many students with substantially less protection than they have now under SARA. And of course ED’s position disregards the intent of the many state legislatures that have passed laws authorizing their state to participate in SARA over the last several years.” 

3) Massachusetts Executive Office of Education

So how did all of this happen? Massachusetts officials took credit in a press release on Monday:

“On Friday, the U.S. Department of Education announced the final state authorization regulations for postsecondary distance education, incorporating recommendations from the Massachusetts Board and Department of Higher Education, the Office of the Attorney General, and the Executive Office of Education to ensure that the final regulations do not curtail a State’s full authority to enforce its consumer protection laws. In the final rule, interstate reciprocity agreements cannot prohibit a state from enforcing its statutes and regulations, including those specific to all or a subset of educational institutions.”

Governor Charlie Baker applauds the Department’s actions:

“Massachusetts has the strongest consumer protection laws in the country, and we are thankful for the partnership with the Attorney General’s office on these efforts.”

What Massachusetts officials fail to mention in the state with the “strongest consumer protection” is that the state has never regulated purely online distance education, whereas SARA requires member states to do so. Where has the concern been for those students all these years?

4) Inside Higher Ed

The history, the conflict, and the potential for the ultimate demise of the Distance Ed Rule were illustrated in a December 21, 2016 article in Inside Higher Ed:

“The rule-making process has been one of fits and starts, complete with court cases, delays and failed negotiations — and then a surprise last-ditch effort this summer. After collecting input on a draft this fall, the Education Department published the final rule in the Federal Register on Monday.

Yet the rule may never go into effect.”

The new regulations’ impact on SARA and the Department’s undermining of the work by state governors and legislatures to collaborate is described as follows:

“While department higher-ups have throughout the rule-making process reassured SARA that the rule would not undermine its work, the final rule includes a change that SARA’s national council on Tuesday described as “puzzling.”

The final rule states that reciprocity agreements can’t ban a state from enforcing its own laws, which SARA said suggests the Education Department will recognize reciprocity agreements that allow states to continue to enforce their own laws — even though they have entered an agreement to share a common legal framework.”

That statement ignores the fact that the governors, legislators, and/or other officials charged with overseeing higher education voluntarily joined the reciprocity agreement. Additionally, The Century Foundation is cited as one of the organizations pushing for the SARA limitations arguing that SARA “opens the door for ‘predatory online education companies’ to take advantage of students’.  Yet, The Century Foundation among a few other critics do not acknowledge that without SARA there are more than 25 states that do not provide any oversight of institutions providing online education. Under SARA those students are now protected.

5) This Regulation Will Probably Be Terminated 

We had a conversation with a knowledgeable person who assured us that there will be a bill to end this regulation. Using the Congressional Review Act makes the process of undoing this regulation fairly easy when one party controls both houses of Congress and the Presidency. The jubilation in Massachusetts and the Century Foundation is likely short-lived.

Meanwhile, state regulations are still in place and institutions should continue to follow those rules. If you or your institution has opinions on this regulation, you should share them with your Congressional Representative and Senators.

6) ‘Next Steps’ from the WCET State Authorization Network

The two of us had a long discussion about this on Monday. SAN members can expect to participate in more discussions regarding further recommendations on what next steps institutions should be taking. Look for more recommendations in the new year.

In the meantime, there are five important things for all institutions to remember:

• Follow State Laws. All institutions must continue to follow the state’s laws in the states where the institution conducts activities, such as marketing, enrolling distance students, conducting face-to-face workshops, practica, or internships in another state.
• Follow Federal Notification Rules. Federal regulations continue to be in place that require an institution to provide institutional information per 34 CFR 668.43, which includes providing a complaint policy in the states for which the institution participates in activities outside of the home state of the institution.
• Be Sure Not to Misrepresent Your Offerings. Federal regulations continue to be in place to prohibit an institution that participates in Title IV programs from engaging in “substantial misrepresentation” about the academic programs, financial charges and the employability of its graduates.  34 CFR 668.71 * “intent” is not a necessary factor to determine whether a school has engaged in misrepresentation.
• SARA Institutions Follow SARA Policies. An institution participating in SARA that has students in another SARA state must follow the unified policies and standards as agreed to by the states approved by SARA. These policies and standards include additional notifications and disclosures concerning students participating in programs leading to professional licensure.
• Be Student-Centric with Information. Regardless of the requirements previously stated, to best serve students, institutions must provide students with the information necessary for them to succeed with their academic programs and for the credentials earned to then be useful in the location of the student.

We hope that you have happy holidays and a wonderful new year.

Cheryl Dowd
Director
State Authorization Network
cdowd@wiche.edu

 

Russ Poulin
Director, Policy and Analysis
WCET – WICHE Cooperative for Educational Technologies
rpoulin@wiche.edu

If you are not a WCET member, come join us!