Call to Action: Comment on State Authorization for Distance Education Regulation

I encourage you and/or your institution to submit comments on the state authorization regulation proposed recently (press release, proposed regulations) by the U.S. Department of Education. In a recent post, I gave you a “first look” at the language, included some analysis about what is new, and commented on some implications.

In this post, I will provide you with background and opinions on four of the elements of the proposed regulation and suggest some other topics on which you may wish to comment. I also provide you with some possible language that you might use in your comments. Finally, I give you information on how to comment.

The comment period ends August 24.

Please don’t use the excuse that you are a State Authorization Reciprocity Agreement (SARA) member to not pay attention. Much of what is proposed has an impact on everyone…and some of it directly affects SARA members.

If you plan to have your institution comment, get motivated. Understandably, it often takes some time for draft comments to make their way through institutional review and approval processes before they can be submitted. Alternatively, you can comment on your own.

1) Initial Overview

Let me complement the Department for trimming the proposed language from what was presented to the Negotiated Rulemaking panel (for which I was a negotiator) in 2014. The language is much clearer and less redundant. I still have some questions, but fewer than I had two years ago.  I also laud the Department for focusing on the key issues.

One of my biggest worries is the answer to what protections are included in “consumer protection” as part of the reciprocity definition. Interpreted broadly, it could cripple SARA, but I sincerely doubt that is the Department’s intent. Second on my list is the attempt to use out-of-state institutions to get states to develop their complaint processes. I agree with goal, but their proposed process will not allow us to reach that goal very soon. See more on both points in the discussion below.

For institutions, if you have been paying attention to state authorization rules, you should (mostly) be okay. If you have not been paying attention (oh my, why is that, the state regulations have been there all along), you better get going.

For students, these regulations will provide more protection. Students will also receive more information about the programs they seek to enter.

Bottom line: Keep the focus on the student.

2) Institutional Compliance

Background and Department’s Proposed Language

The proposed regulation requires institutions to demonstrate that they have the proper authorizations in any state in which they enroll a student who receives Title IV funds. The language:

“If an institution described under paragraph (a)(1) of this section offers postsecondary education through distance education or correspondence courses to students in a State in which the institution is not physically located or in which the institution is otherwise subject to that State’s jurisdiction as determined by that State, except as provided in paragraph (c)(1)(ii) of this section, the institution must meet any State requirements for it to be legally offering postsecondary distance education or correspondence courses in that State. The institution must, upon request, document to the Secretary the State’s approval.”

Opinions

Support the Department’s return to the 2010 intent. First, this issue was the major sticking point of the Negotiated Rulemaking process held two years ago. In the original regulation, issued in 2010, the Department asked institutions to follow existing state laws, if any. In the 2014 Negotiated Rulemaking, the Department sought to make every state conduct an “active review” of every institution. The great majority of negotiators (10 or 11 out of 16) did not support that idea. I am pleased to see that this proposal returns the Department to the original regulatory framework that colleges must follow any existing state laws. The uncertainty that the “active review” implementation would have caused would have harmed students. Keep the focus on the student.

Second, I know that many in the higher education community wish this federal regulation would go away. I don’t agree. For the amount of federal funding that institutions receive, asking colleges to follow state laws is a reasonable expectation. In talk about regulations, the impact of protecting students is sometimes lost. Keep the focus on the student.

There definitely will be groups that will try to influence the Department to try to force each state to conduct an “active review.” Their focus is on “for-profit” institutions, but “for-profit” institutions already have additional authorization requirements in many states and have (usually) already complied with them.  The “active review” would have been an unfunded mandate for an activity that those states did not see a need to enact by now. The resulting chaos for non-SARA states and institutions would have left students uncertain whether or not they were enrolled in or considering an approved institution. Keep the focus on the student.

Corinthian Colleges is rightfully used as the poster child for an unsavory for-profit that wasted federal funds. Those seeking more regulation called Corinthian an “online institution.”Actually, Corinthian Colleges was a collection of 60 colleges, only five of which enrolled a significant number of students (more than 10% of total enrollment) solely at a distance. Lax oversight by Corinthian’s accrediting agency has been covered extensively in the press. But Corinthian is based in California and that state’s oversight is also wanting and has been totally absent, at times. California’s oversight problem will only be fixed by long-overdue direct Departmental negotiations with the state. Indirect regulations depending on out-of-state institutions lobbying the California legislature to change their laws will not improve student protection. Keep the focus on the student.

 Possible Language for Commenting

We support the Department of Education’s return to the original 2010 regulatory intent to assure that institutions offering distance and correspondence education in other states are following the existing laws of each state in which it enrolls students.

3) Reciprocity

Background and Department’s Proposed Language

The proposed regulations recognize reciprocity among states as a valid route to meeting Department of Education state authorization requirements. Note that the Department can only endorse reciprocity as a concept and cannot endorse any specific model, such as the State Authorization Reciprocity Agreement (SARA). The language:

“If an institution described under paragraph (a)(1) of this section offers postsecondary education through distance education or correspondence courses in a State that participates in a State authorization reciprocity agreement, and the institution is covered by such agreement, the institution is considered to meet State requirements for it to be legally offering postsecondary distance education or correspondence courses in that State, subject to any limitations in that agreement. The institution must, upon request, document its coverage under such an agreement to the Secretary.”

In the Department’s recommendations, they propose a new definition:

“State authorization reciprocity agreement. An agreement between two or more States that authorizes an institution located and legally authorized in a State covered by the agreement to provide postsecondary education through distance education or correspondence courses to students in other States covered by the agreement and does not prohibit a participating State from enforcing its own consumer protection laws.”

Opinions

Support the Department’s Proposal. Department leaders have continually issued strong support for the idea of state-to-state reciprocity agreements serving as a means to fulfilling this requirement. The Department should be thanked for re-affirming that support in the proposed language.

Request Guidance on the “Consumer Protection” Term. We believe that the intent of the term “consumer protection” refers to general fraud, misrepresentation, and abuse laws that could be applied to any business or activity in the state – including colleges and universities. SARA’s provisions focus on the requirements for institutions to offer postsecondary education in a state and not the rules for operating as a business in the state.

If a broader definition is used, then a state could define any institutional requirement as consumer protection. Under that scenario, a state could enforce any of its previous rules. That would end reciprocity. Given the Department’s support for reciprocity, we don’t believe that is their intent.

SARA opponents have attempted to confuse this issue by falsely claiming that SARA keeps states from pursuing fraud, misrepresentation, or abuse claims by those residing in their state. To the contrary, SARA’s Policies and Standards document states:

“…SARA member states continue to have authority to enforce all their general-purpose laws against non-domestic institutions (including SARA participating institutions) providing distance education in the state, including, but not limited to, those laws related to consumer protection and fraudulent activities.”

With “general-purpose laws” being defined in the SARA Policies and Standards document as:

“A ‘general-purpose law’ is one that applies to all entities doing business in the state, not just institutions of higher education.”

Unfortunately, the untruth about SARA’s restrictions has been repeated often enough that the Department decided to add this language.

Possible Language for Commenting

We applaud the Department of Education’s on-going support of reciprocity as a means for institutions to obtain state authorization for distance and correspondence programs offered to students in other states. The success of reciprocity is witnessed by forty states and the District of Columbia joining the State Authorization Reciprocity Agreement in just two-and-a-half year. Additional states are slated to join in the next six months.

The proposed definition of “state authorization reciprocity agreement” bans any such agreement from prohibiting “a participating State from enforcing its own consumer protection laws.” A clarification of “consumer protection” is needed to help those enforcing a reciprocity agreement and the agreement’s member states understand the Department’s intent. Rather than clarifying the intent in regulation, we support future guidance in comments when issuing the final regulation and a “Dear Colleague” letter. The guidance should affirm “consumer protection” laws as being limited to general purpose fraud, misrepresentation, and abuse laws that apply to all entities doing business in a state, not just institutions of higher education.

4) Student Notifications and Disclosures

Background and Department’s Proposed Language

The proposed regulations include several new notification and disclosure requirements for distance education students. Both enrolled and prospective students are to be notified. Some requirements are for “public disclosures” (such as by website and catalog) and some are “individualized disclosures” (directly to the student via email or U.S. Mail).

The new requirements with possibly the most impact will be those for programs that lead to licensure or certification in a profession. Of course, the licensure and certification requirements vary greatly across professions and states. This issue was not addressed in the original regulatory language from 2010. During the Negotiated Rulemaking, Marshall Hill (NC-SARA Executive Director and fellow negotiator) and I supported some form of notification for such programs. We did oppose when they tried to expand the requirement to ALL programs, both those at a distance and face-to-face. We felt that such an expansion was outside the scope of the Rulemaking.

The “public disclosures”:

• State authorization. List the states in which the institution is authorized (or whatever term the state uses) to provide the distance program. Also, whether that authorization was provided by the state or a reciprocity agreement.
• The complaint process and contact information for the institution’s state, the reciprocity agreement (if the institution participates in such an agreement), and the student’s state.
• Adverse Actions. Institutions are to disclose any “adverse actions by a state entity or accrediting agency…”related to postsecondary education programs offered solely through distance education or correspondence courses at the institution for the five calendar years prior to the year in which the disclosure is made.”
• Refund Policies. Disclose refund policies with which the institution is required to comply.
• Professional Licensure Approvals. For programs offered at a distance that lead to professional licensure or certification, notify students of:
  • The state’s educational prerequisites for that occupation.
  • If the institution determined whether or not its program meets a state’s prerequisites, disclose that fact to potential students in that state.
  • If the institution has not determined if its program meets a state’s prerequisites, disclose that fact. If you enroll any students in that state, you will be subject to the individualized disclosure below.

The “individualized disclosures”:

• Institution Meets Licensure and Certification Requirements. To prospective students in a state, notify the student whether the program meets the educational prerequisites of that state.
• Adverse actions. Notify students of any new state or accrediting adverse actions within 30 days. Notify students if the program ceases to meet licensure or certification prerequisites within seven days of that determination.
• Student acknowledgement. If an institution enrolls a student in a program in a state in which it does not meet certification prerequisites, the student must acknowledge having received that disclosure.

Opinions

Complaints. The complaint disclosure is a bit puzzling since institutions have been required to disclose the complaint process in each state since July 2011. This new requirement seems to go a bit further in that the institution is asked to document that the complaint process will actually function in the student’s state. It’s akin to an insurance company requiring the policy holder to make sure that the police departments in neighboring towns will actually cite speeding drivers. Some states might not be able to take complaints from students from “exempted” institutions. I’m 100% in favor of 100% complaint process availability for all students.

Since 2010, the Department has been trying to get states to have complaint processes for all students within the same state as the institution. They used this same regulatory approach and it has not worked well. In-state institutions have had a hard time getting legislatures to create complaint processes for in-state institutions in some states. It will be nearly impossible for out-of-state institutions to be effective in lobbying legislators to improve their complaint process.

An unfortunate outcome may be that some legislators will see this as a “protectionist” option. Through inaction they can encourage out-of-state institutions to stop serving students in their state. I do not think that was the Department’s intent.

Getting complaint processes implemented in states that do not have them will take a significant amount of time and effort, none of which is reflected in the estimate of burden for implementing this recommendation. As a result, the uncertainty of whether an institution can offer aid to distance students in those states will cause considerable confusion for students.

In its brief, Cooley, LLP encourages “schools to press the Department to identify which states, in the agency’s view, currently do not have an adequate student complaint system to satisfy the new distance education requirements. Elementary principles of due process would require that institutions have some notice and opportunity to cure any defects with regard to state law (over which they may have no control) prior to losing access to Title IV funds.

Schools should consider asking for clarification on whether home state complaint procedures, if disclosed to students, could afford sufficient consumer protections to satisfy the Department. If a state chooses not to assert jurisdiction over an online program, and therefore no authorization is required under the federal rule, arguably that decision should simply be respected consistent with the principles of federalism.”

The Department will probably reject this last suggestion. I wonder if they would at least consider it as a stop-gap until the distant state creates an adequate complaint process.

Adverse Actions. Accrediting agencies use this concept, but the same term for an action may vary greatly across agencies. For example, something that is a request for more information from one agency may actually be evidence of a serious offense for another. Also, clarification is needed for what types of actions are taken at the state level that should be reported.

Professional Licensure Approvals. It is my view that institutions need to be more proactive in determining if its program meets a state’s educational prerequisites if it is going to enroll students at a distance in that state. I’ve often heard that “it is the student’s responsibility” and that is a tragically selfish point-of-view that does not put the student first. The institution can’t argue both that: a) it is hard for experienced institutional personnel to determine if the institution meets the prerequisites in each state and b) that a student who has yet to take his/her first class in the field has any hope of understanding the academic and legal nuances involved. That being said, it is much, much harder to understand the requirements and obtain approvals from the many boards than the Department reflects in its estimation of burden section of the proposed regulation. In fact, the Department’s estimates are disastrously low. Compounding the problem, as we saw in 2011 with the federal state authorization regulation was to go into effect, there will be a “land rush” on professional board offices. Those offices will be ill-equipped to handle the work and inquiries since these activities were not in their work plan. Since this is a new requirement, the Department should give several years before enforcing it.

Possible Language for Commenting

We agree with the Department’s goal of assuring that every student has access to a robust complaint process. However, the Department’s proposed regulation’s reliance on out-of-state institutions to lobby for changes in other states’ complaint practices will be slow to produce results. Out-of-state institutions will have little influence over the legislatures of states lacking an adequate complaint process. We encourage the Department to work with WCET and  NASASPS (the state regulator group) to develop a strategy for more quickly assuring that students will have access to robust complaint processes. Meanwhile, we suggest that the Department identify the states that are out of compliance, use a long lead time before enforcing this requirement, and consider using the institution’s home state complaint process.

The Department should supply more guidance on how “adverse actions” will be implemented. How should institutions address when similar terms have different meanings across accrediting agencies? Which state actions should be included as “adverse actions”?

For the professional licensure and certification notifications, the Department’s estimate of burden woefully underestimates the amount of time institutions will spend in fulfilling this requirement. The process includes initial research, application processes, coordination within the program and institution, and numerous interactions with board staff.  Additionally, professional boards in the states will be overwhelmed with requests. The boards will not be staffed to handle the volume of inquiries and turn-around will be even slower. Therefore, we suggest that the Department not enforce this provision for at least three years after enacting the regulation.

5) Other Issues About Which You May Wish to Comment

In the previous sections, I have highlighted the areas of main concern for distance education providers. Depending on the interests and activities of your institution, you may also wish to comment on the following items:

• Aid Consequences. Thank you to our friends from Cooley, LLP law firm for raising this question: “To head off future issues, we encourage schools to seek clarification from ED as to whether institutional eligibility or programmatic eligibility is at risk for failure to obtain authorization for distance programs in any particular state. In other words, if one fails to demonstrate state authorization in a particular state, does that mean the eligibility of the institution is at issue, or just the eligibility of particular programs in a state?”
• Hybrid courses/programs. The regulations seem to omit any federal oversight of hybrid programs while the states are still very interested in these activities. If they had followed my advice and focused on geography and not mode of instruction, they would have solved many of these problems. By focusing on “distance education” as the problem to solve, they are leaving some students unprotected. Go figure. You may wish to ask for clarification on how these regulations relate to students in hybrid programs?
• Branch campuses or locations in foreign countries. If you have an independent branch campus or location where a student can finish 50% or more of a program in a foreign country, there are new state authorization requirements. I do not believe it covers agreements with foreign institutions, but you may wish to ask for clarification. Since this is a new requirement, you may wish to ask for additional time before this is enforced. Some states might not have a process to act on this requirement.
• Students from states where the institution does not meet licensure/certification requirements. It is good to see that the Department understands that there are times when it makes sense for a student residing in a state for which the program does not lead to licensure might still wish to enroll. For example, a military spouse might intend to return to the institution’s home state to practice after his wife’s tour of duty ends. During the Negotiated Rulemaking process, some negotiators proposed elaborate processes for this notification. One wanted each prospective student to write an essay indicating her/his understanding of the consequences. This would be a nightmare for the student, the program, and any English majors who happen by. You may wish to ask for clarification on what type of acknowledgements would be acceptable and request that such acknowledgements not be too complex for the student.

6) How to Comment

Join the fun. Reply! VOLUME COUNTS.

Who Should Reply?

Institutions, programs, or individuals may reply. If you serve students via distance education in other states, you should consider replying. For an institutional or programmatic reply, you need to navigate the proper government relations channels at your institution. This may be difficult given the August 24 deadline.

If you reply as an individual, you can’t use your institution or organization letterhead. You can supply your name, title, and employer. It might be good to reiterate that you are not responding in your official capacity.

How Do I Reply?

Directions on how to reply appear in the “Addresses” section of the Supplemental NPRM (NOTE: link updated 08/22/16). You may: “Submit your comments through the Federal eRulemaking Portal or via postal mail, commercial delivery, or hand delivery. We will not accept comments submitted by fax or by email or those submitted after the comment period. To ensure that we do not receive duplicate copies, please submit your comments only once. In addition, please include the Docket ID at the top of your comments. If you are submitting comments electronically, we strongly encourage you to submit any comments or attachments in Microsoft Word format.”

If you plan to use the Portal, give yourself some time to figure it out or get help from the person who usually submits comments for your institution. Read the specific instructions on pages 2 and 3 of the proposed regulation.

What Should I Say?

Personalize it as form letters get less attention. Briefly tell your story. Who are you? What impact would these regulations have on students? What impact would these regulations have on your program? Focus on what would have the greatest impact on you and your students. Say why the proposed would regulations would help or hurt you, your institution, and (especially) your students. Discard the rest.

Be respectful. We can be better than the presidential nominees.

Make positive or helpful suggestions. Personally, I hate the responses which object to everything without supplying, at least some, helpful alternatives. This helps to address the sense that we are merely objecting to any type of oversight or anything that inconveniences us. I’m for regulations that serve a purpose and for which the cure is not worse than the disease.

Ask questions about clarifications that are needed.

7) WCET Will Submit Comments

WCET in partnership with the WCET State Authorization Network will be submitting comments. We are also talking to other organizations about partner in commenting or to endorse our comments. If you know of any such organizations, have them contact me.

Sorry this got so long, but there is much to say and much context to understand.

Good luck in submitting your comments! Thank you for your help!

Russ

Russell Poulin
Director, Policy & Analysis
WCET – The WICHE Cooperative for Educational Technologies
303 – 541 – 0305
rpoulin@wiche.edu
@russpoulin