The U.S. Department of Education recently published a notice in The Federal Register dated May 21, 2013 stating that it intends to delay the implementation date for certain state authorization regulations until July 1, 2014 when an institution’s state authorization does not meet the requirements of these regulations by July 1, 2013. The extension is only available to qualifying institutions and requires institutions to obtain certain information from the applicable state(s) in order to receive the extension. We hope to shed some light on the purpose of the Federal Register announcement and how it impacts the state authorization regulations. However, the discussion below does not constitute legal advice and should not be relied upon as legal advice. Institutions with questions or in need of legal advice on these matters should consult with their legal advisor.
The Federal Register announcement is not related to the portion of the state authorization regulations that requires institutions that offer distance or correspondence education to obtain all required approvals and meet applicable requirements in every state in which they offer instruction to students. The Department had previously announced in a Dear Colleague letter (DCL) of July 27, 2012 (GEN-12-13) that it would not enforce this portion of the state authorization regulations (34 CFR 600.9(c)). The Department made this announcement as a result of federal court ruling by the U.S. Court of Appeals for the District of Columbia Circuit that vacated section 600.9(c).section The Department’s DCL went on to say that “institutions must comply with the provisions found in 600.9(a),” but the Department “will not enforce the requirements of 600.9(c), although institutions continue to be responsible for complying with all State laws as they relate to distance education.” [emphasis added]
What this means is that the Department is currently unable to enforce the state authorization rule found in 34 CFR 600.9(c) requiring colleges to meet applicable approval and other requirements in each state where they deliver distance or correspondence education programs to students in that state. At the same time, the Department is pointing out that States may enforce their own laws against institutions that offer distance or correspondence education to students in the state and that institutions are responsible for complying with these State laws and regulations.
In contrast, the Federal court ruling did not strike down the other portion of the state authorization regulations (34 CFR 600.9(a) and (b)). As a general matter, this portion of the state authorization regulations establish minimum requirements for States to regulate institutions physically located within that State. This summary does not describe the full scope of these requirements, but, among other things, the State must have a process of reviewing and acting upon student complaints and have an authorization process that complies with the complex requirements in the regulations. The authorizations issued by the State generally must identify the institution by name and authorize the institution to offer programs beyond secondary education in the state.
The Department stated in the May 21, 2013 Federal Register announcement that it intends to delay the implementation date for this portion of the state authorization regulations until July 1, 2014. There appear to be several reasons for the need for the extension. First, public information is not available as to the Department’s position as to whether State processes are in compliance with the state authorization rules, and, therefore, institutions do not know if they are in compliance. To add to the confusion, Department of Education staff has reportedly experienced a significant backlog with respect to responding to State agency inquiries and some States do not know if they are in compliance. The Department states in the Federal Register announcement that several States have notified it that they need additional time to develop or complete processes in order for some institutions to be able to comply with the state authorization provisions found in 600.9(a) and (b).
Institutions should be aware that the extension of the implementation date until July 1, 2014 is not automatic and may not apply to all institutions. The Federal Register announcement states: “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 [section] 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 [section] 600.9. This explanation must be provided to the Department staff upon request.” The Department may request this information when an institution is seeking recertification to participate in the Title IV programs or if a question arises due to a complaint, a program review, or an audit.
The state authorization regulations are complex and require careful analysis in order to determine how they apply and affect different institutions and states. Schools may wish to contact the State agency that authorizes or licenses their campuses and programs for further information. Schools should strongly consider seeking legal advice if they have questions about the regulations or if they may need to obtain an additional extension of the implementation date of the state authorization regulations.
back to top