The Announcement of the Delay was Delayed, but the Result is a Delay!

When is a “delay” not a delay? The Department of Education’s latest regulation on state authorization went into effect on July 1. The Department wanted to announce a delay of the effective date before last Sunday. They missed that deadline. The final notice of the delay was not published in the Federal Register until July 3. Not issuing the delay before July 1 caused some to speculate that the regulation remains in effect because the rules for announcing a delay change after a regulation goes into effect. Inside Higher Ed reported about two tweets opining on this issue.

If we wished to do so, we could discuss the details about the timing of the delay in many pages of analysis of procedure. Ultimately, we believe a delay (in one form or another) will move forward. If the Department’s intent is to delay, they will eventually find a legal way to do so. For example, we recall that the Department of Education announced the delay of key provisions of the Gainful Employment regulations in the Federal Register on July 5, 2017, four days after its effective date. Additionally, one of the reported tweets indicated the need for the Department to take additional steps for a delay since the effective date had passed. As happened with the state authorization for distance education regulation in 2011, the Department could choose to delay the “enforcement” of the rule. This is different than delaying the “effective” date of the regulations and an enforcement delay could be announced via a Dear Colleague Letter.

The bottom line is that institutions are extremely hampered in complying with these Federal regulations until they know what they are supposed to do. The Department has been clear that they now understand the complexity of these concepts and processes that institutions must put into place to be compliant. As we outline below, institutions are still required to implement many of the consumer protections included in this regulation.

We believe the Department will find a way to delay these regulations. We wish they would have answered our many questions much earlier (we’ve been raising these same questions since 2016) so that this regulation would have gone into effect last Sunday. But, they did not and they decided to delay.

The Delays Announced on July 3, 2018

In the announcement that was published on July 3, the Department announced the effective date of these selected provisions will be delayed until July 1, 2020:

• 34 CFR 600.2 Definitions: State Authorization Reciprocity Agreement – DELAYED
• 34 CFR 600.9 (c) State Authorization for distance education or correspondence courses – DELAYED
• 34 CFR 668.50 – Institutional disclosures for distance or correspondence programs – DELAYED

The section of the regulation regarding foreign locations was not delayed. Watch for a follow-up post detailing that issue next week, but (spoiler alert) the foreign requirements are not about distance education.

State Authorization Compliance Continues Despite Delay

Regardless of the status of a federal regulation, we wish to be emphatic that every institution must thoroughly understand that compliance for out-of-state activities of the institution must be maintained per the following:

• State regulations. For both institutional authorization on professional licensure programs, institutions need to know the requirements of any state in which they are recruiting and/or enrolling students.
• SARA requirements (see the SARA Manual). These remain in effect for member institutions.
• Federal regulations currently in effect (we will write more on these in an upcoming post):
  • 34 CFR 43(b) – Institutional Information (Student Complaint location);
  • 34 CFR 71 and 34 CFR 668.72 (c) (2) Misrepresentation – with specific language about professional licensure;
  • 34 CFR 17(g)(2) – at registration or enrollment, in writing, notify students of any projected additional student charges (proctoring).

• Department of Defense (DoD) Memorandum of Understanding (MOU) requires participating institutions to comply with all state authorization requirements for providing distance education to participate in the Tuition Assistance Program for active duty military students.

These requirements did not get delayed. As a matter of fact, compliance with the above requirements and regulations should already be in place for every institution.

The Department’s Reasoning

The Department states that the reason for the delay of the Federal regulations are the concerns described in our February 2018 letter (WCET, NC-SARA, DEAC) and the February 2018 letter from the American Council on Education (ACE). The concerns raised in these letters focused on use of the word residence and proper implementation of the disclosure requirements for professional licensure, adverse actions, refund policies, and state complaint procedures. What is not mentioned is that we have been raising these questions since the summer of 2016.

The Department maintains that the clarifications needed were so substantive that a delay in the effective date is required to review and possibly revise the regulations. Providing guidance was determined not to be an option due to the complexity of the issues, the importance of input by stakeholders, and that guidance is non-binding.

Definition of “Residence” and “Reside”

The Department’s announcement points to our concerns that the definition of the word “residence” in the preamble of the Federal regulation conflicts with state laws and common practice. WCET and SAN, in an August 2017 letter to the Department, shared the following:

“State regulations are focused on oversight of institutions for activities provided in the State. Consequently, to be compliant in each State and therefore offer verification to the Department, the institution must follow the compliance process required for the activity occurring in a particular State REGARDLESS of the official residency (where the student votes or pays taxes) of the student.”

Additionally, we shared that the use of the term “reside” conflicts with State requirements for location of activity and adds to the confusion for implementation. We expressed concern that regulators may indicate that they have no jurisdiction over institutions that are educating their students outside of their state. Due to what we believe is a flaw in the language, WCET and SAN recommended, in this same August 2017 letter, that the Department abandon this definition of “reside” and use the word “located”.

To confirm that the focus of state oversight is location of activity, we sought direction from a state regulator. Leroy Wade is the Assistant Commissioner for the Missouri Department of Education, who shared the following:

“For most states, the residency status of the student is not a particularly relevant factor. I would suggest that even where regulation is triggered by student enrollment, the state is really focusing on the delivery site. To my knowledge those states do not ask if the person enrolling is a resident just that the person is accessing the education from within that state. Certainly, in Missouri, our oversight process is triggered by the type and level of activity of the educational institution rather than the resident status of the enrolling student.”

Another state regulator, Julie Woodruff, Assistant Executive Director & Lead Attorney for the Tennessee Higher Education Commission, concurred with Leroy Wade’s assessment.

Finally, the use of the term “reside” conflicts with The Department’s own previous guidance on which institutions have long relied. For example, see the paragraph from a 2011 Dear Colleague letter. While this is an “historical record,” it falls in line with the generally accepted standard of practice mentioned above. The italicized, red-lettered emphasis is in the original.

Disclosure Requirement Implementation

The Department acknowledges the need for further review and consideration of whether more detailed requirements are necessary for implementation of the required disclosures. The Department notes that guidance would not likely address the current gap between institutional understanding and the Department’s expectation for implementation of the regulations for proper compliance.

It is the concern about proper implementation of the disclosure requirements that our February 2018 letter addressed related to the expense to implement the regulations. The Department addresses the expense in determining authorization regarding residence, but does not acknowledge the time and expense required to interact with each state licensure board for which the institution may have programs leading to professional licensure and certification.

The interaction of the state licensure boards has been challenging, at best. Many state licensure boards were not prepared for the onslaught of calls and emails to offer guidance to institutions regarding pre-requisites. The institution’s desire is to complete this difficult task correctly the first time. The concern raised by our letter was to ask guidance to prevent incorrect implementation that would have added unnecessary expense for the re-creation of a disclosure plan to meet the Department’s expectation.

Consumer Protection

We find it unfortunate that the Department did not act on our many requests to clarify our issues before now. We agree that this federal regulation is another tool in protecting students, as we stated in our letter of August 1, 2017:

“We encourage the Department to strongly consider maintaining State authorization of distance education regulations. Requiring State compliance to participate in title IV funding will not require additional labor by the institutions, as they are legally mandated to follow the rules and laws of each state in which they enroll students. Additionally, our organizations believe that licensure-related notifications and disclosures support students’ abilities to achieve their academic and career goals. Institutions should be required to dutifully notify enrolled and prospective students participating in educational programs completed solely through distance education or correspondence of all factors relevant to their pursuit of their academic and career goals. These Federal regulations will increase the level of consumer protection to ensure students are not exposed to unscrupulous actions that could impair the student’s investment in higher education.”

We also firmly believe that lacking proper guidance, institutions would have differed in how they complied with this regulation. An institution could be found wanting for reasons that are unclear to them.

We also firmly believe that some of the provisions would have served only to confuse and frustrate students. Suppose institutions informed a student of a complaint process for the state in which she is an official resident, but she is actually receiving the instruction in another state? Imagine her frustration after calling the complaint office in her home state and learning that they have no jurisdiction in the matter and can’t help.

Let’s have rules that actually help students.

And we’ll see what happens next in the delays.

 

Cheryl Dowd
Director, State Authorization Network
WCET – WICHE Cooperative for Educational Technologies
cdowd@wiche.edu

 

 

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

 

 

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