State Approval Update: No Extensions for Distance Ed, but WCET Helps

I learned an important fact this week…institutions offering distance education in other states will need to meet the regulations (if any) of those states by July 1, 2011.  There are no extensions.  But, keep reading for some good news.

In my webpage, “2010 Federal Regulations on State Approval of Out-of-State Providers,” and other writings, I may have misled people on these two issues.  Conversations over the past week have helped to clarify this issue and I think we made an important step forward.

No Extensions for Distance Education…

The federal regulations on “state authorization” released in late October included language about “extensions.”  See page 66863 (column 2) of the Federal Register for more details. Like many others, I saw these “extensions” as an opportunity for distance education institutions to act on these approvals later in states that were not ready to meet the regulations. Not so.

Fred Sellers, U.S. Department of Education (USDOE), informed me of my error in thinking.  The extensions are only for state agencies regulating institutions located in their own state.  The extensions are not for institutions offering education at a distance from other states.  He assured me that distance education institutions are expected to meet state regulations (if any) in all states in which they serve students by July 1, 2011.  No extensions.

In talking with people from several colleges, it was clear that many institutions have not begun to address this issue.  In looking at the state regulations, the regulations are complex and some of the agencies take many months (if not years) to act on applications.

I wrote back to Fred:  “There is no way that many hundreds of institutions will meet this deadline…isn’t there a process/timeline that we can develop that is actually possible for institutions to achieve?”

But ‘Good-Faith’ Efforts are Rewarded

Here is the response from Fred…

If an out-of-State institution is offering distance education in a State that regulates distance education offerings, including online or correspondence study, these activities by the out-of-State institution must comply with the State’s requirements as determined by the State if the institution’s activities in that State are to be considered legally authorized in the State for Federal purposes.

 

We can approach this issue from the point of view of enforcement in the initial award year of implementation as we often do with new regulations and look to whether the institution is making a good-faith effort to comply with State requirements.

 

For the 2011-2012 award year, we will consider an institution to be making a good-faith effort to comply with the distance education regulations for State authorization, if–

• The institution has applied for approval of its offerings in such a State, and
• The State confirms that the out-of-State institution is trying to meet the State’s requirements.

 

If a State does not regulate such activities by out-of-State institutions, the institution is considered to be legally operating in that State.

 

As you may recall, an institution is expected to be in compliance at all times and may be required to demonstrate compliance upon request  but will not otherwise need to provide any documentation to the Department for this requirement regarding distance education.  A request might be made, for example, due to a student complaint, during a program review, or as part of an institution’s recertification to participate in the title IV, HEA student assistance programs.

I am very glad that we were able to work with Fred and his colleagues at the U.S. Department of Education to get this clarification on behalf of all distance education institutions.  Many thanks to Fred for being so responsive on this issue.

So, What’s Next?

I continue to have conversations with many people about how to interpret and improve this situation. I will continue to update you.  A couple highlights:

• In talking to Fred Sellers, he said that the USDOE’s “Dear Colleague” letter (which will further interpret issues around the regulations released in late October) will actually be multiple letters covering this and other regulations released in late October.  He expects the first letter to be issued in February and he is pushing to have the state approval issue addressed in the February letter.
• WCET (in partnership with the Southern Regional Education Board, the American Distance Education Consortium, and the University of Wyoming) is working on a list of approval agencies in each state.  This list will provide very basic information…and we’re finding even that is not easy to do. We hope to have that list to you soon.
• Several states do not regulate distance education, but we are finding that blanket statements don’t work very well.  Whether your institution should be approved by a state may depend on factors including physical presence (no standard definition), advertising in the state, and whether you require students to take proctored tests in their home state. Regulations and interpretations resemble shifting sands a bit more than we thought they might.

More to come!!

Russ Poulin
Deputy Director, Research & Analysis
WCET – WICHE Cooperative for Educational Technologies
rpoulin@wiche.edu
Twitter hashtag on this issue: #stateapp
http://wcet.wiche.testing.brossgroup.com/advance/state-approval