The Trump administration announced in its Spring 2018 Regulatory Agenda that it plans to delay the effective date of a 2016 distance education regulation by two years, from July 2018 to July 2020. The move could signal the Department of Education's intention to afford institutions of higher education more time for compliance, or it might be an indication of ED's willingness to change the final rule.
On May 9, the Trump administration released its Spring 2018 Regulatory Agenda, which is a comprehensive list of the regulatory actions the Executive Branch is planning to pursue over the next 12 months. The Regulatory Agenda is released semiannually, and federal agencies use the agenda as a means of informing the public of target release dates for potential rulemakings. Included in the Spring agenda is an official announcement that the Department of Education's (ED) final rule regarding state authorization of distance education is delayed until July 2020; the regulations were originally scheduled to go into effect on July 1, 2018. The delay could be an indication that ED is considering either providing more time for institutions of higher education to come into compliance or redoing the final regulations based on the concerns raised by relevant stakeholders.
The final rule in question was originally published on December 19, 2016, and as explained by the department in its press release, was designed "to improve oversight and protect…distance education students…by clarifying the state authorization requirements for postsecondary distance education." Under the Higher Education Act, institutions of higher education are required to obtain authorization from the state in which they are physically located in order to be eligible for federal student financial aid from the Department of Education. The 2016 final rule extended this authorization requirement to institutions offering distance education or correspondence education programs operating in a state that requires such authorization.
If the final rule goes into effect as currently written, institutions offering distance education programs would have to obtain authorization from each state in which they hope to operate — regardless of whether the institution has a physical presence in the state — if the state in question requires such authorization. Institutions would also be required to document the state process for resolving complaints from students about the distance education program. Additionally, institutions would be required to provide public and individualized disclosures to current and prospective students on the institution's refund policies; on whether its programs for professions requiring licensure or certification meet the relevant requirements of the student's state of residence; and on any adverse actions taken against the institution. Finally, the rule would require institutions' foreign branch campuses or locations to be authorized by the appropriate government agency in the relevant countries.
More than 100 comments were filed on the proposal when it was originally published in June 2016, including comments that EDUCAUSE and several other higher education associations and organizations filed on August 24, 2016. The education community was concerned about the ambiguity of the final rule and the impact the regulations would have on state authorization reciprocity agreements, specifically the State Authorization Reciprocity Agreement (SARA) operated by the National Council for State Authorization Reciprocity Agreements (NC-SARA). The rule left some concerned that participating states could still enforce individual requirements on institutions under the guise of "consumer protection statutes and regulations," in effect nullifying SARA. NC-SARA requested clarification [https://wcet.wiche.edu/sites/default/files/NCSARA-WCET-Reciprocity-Request-2017.pdf] from Undersecretary Ted Mitchell, who answered on January 18, 2017 [https://wcet.wiche.edu/sites/default/files/Ted-Mitchell-Reciprocity-Response.pdf], explaining that the final rules were not meant to jeopardize SARA and that state reciprocity agreements would be seen as complying with the state authorization final rule.
Jennifer Ortega is a Senior Associate with Ulman Public Policy.
© 2018 Jennifer Ortega. The text of this work is licensed under a Creative Commons BY-NC-ND 4.0 International License.