Ed Department Delays State Authorization Deadline - What Does that Mean?

On Tuesday, May 21, the U.S. Department of Education is officially releasing a new ‘Dear Colleague’ letter on state authorization.  I thought it might be helpful to put this new announcement into context.  But first, let me start with a reminder…

There Currently is No Federal Deadline for State Authorization for Distance Education
I often get asked, “so what date is the new federal deadline for institutions to be in compliance with state authorization regulations?”  The answer is that there is no deadline.

After losing a court case and an appeal in federal court, the Department said last July that it will not enforce the vacated distance education regulation.  Therefore, there is no federal deadline.  Meanwhile, states expect that your institution comply with their regulations before you serve the first student in their jurisdiction.

So What State Authorization Deadline is the Department Delaying?
The distance education portion of the regulation was § 600.9(c).  There are two additional sections of the regulation (§ 600.9(a) and § 600.9(b)) that are not focused on distance education and remain in place.  These sections focus on what the state must do to authorize an institution, including having third-party complaint processes, identifying authorized institutions by name, and other requirements.

The states were supposed to address the new federal requirements by July 1, 2011.  Extensions were available to July 1 of this year.  A ‘Dear Colleague’ letter in January of this year reminded states of the deadline.

Much confusion ensued and there was concern by those at all types of institutions that their students might suddenly become ineligible for aid over some technical requirements.  Earlier this year, Dr. Sophia McArdle of the Department assured us that no student would lose aid because of this rule.  I know that Sophia has been working hard to help states meet this year’s deadline, but there was just too much that had to be done. I applaud Sophia and the Department for keeping their word and for issuing a new ‘Dear Colleague’ letter that extends the deadline for states to have their rules comply to July 1, 2014.

While happy for the extension, I was disappointed by a couple missed opportunities:

• Given the confusion on this issue, it was an opportunity to issue additional guidance.  There was initial guidance give in October 2010 (see Federal Register page 66858) when the regulation was first issued in 2010, but apparently that was insufficient or people could not find it. I’m hoping that the extension gives the Department time to issue more advice on what states should do and how they know if they are okay.
• The extension in the ‘Dear Colleague’ letter is actually issued to the institutions:  “In order for an institution that cannot demonstrate it meets the State authorization requirements under the Department’s regulations to receive an extension until July 1, 2014, to implement §600.9(a) and (b), the institution must obtain from the State an explanation of how an additional one-year extension will permit the State to modify its procedures to comply with amended §600.9.”  Legally, this might be the way it needs to be done, but the institution is only out-of-compliance due to state inaction.  Therefore, institutions must check a list (that does not exist) to assure that their state’s authorization agency meets federal requirements (which are confusing and open to interpretation) to determine whether it should obtain a letter from that agency explaining why a delay was needed.  Got it?  Only a handful of states and agencies will be affected, but I wish I could give you a list which ones those are.  It sure would have been nice to have an easier process.

What About State Authorization for Distance Education?
The Department apparently took the first steps to reinstate the vacated distance education rule.  In a Notice of Negotiated Rulemaking issued earlier this year, they are seeking comments on this issue.  You may recall that the original rule was vacated because they did not properly follow the commenting requirements.  Now they are.

I will be at the Hearing on this Negotiated Rulemaking that will be held in San Francisco on May 30.  I’ll let you know if anything interesting happens. Let me know if you will be there.

Russ

Russell Poulin
Deputy Director, Research & Analysis
WCET – WICHE Cooperative for Educational Technologies
rpoulin@wiche.edu

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