State Authorization: Distance Learning Out of State Authority
Distance Learning Out of State Authority
On October 29, 2010, the federal government published final rules under the "Program Integrity" strand of the most recent round of negotiated rule making. Under the rules, universities and colleges that participate in Title IV funding and operate in multiple states via distance learning must comply with whatever "authorization to operate" regulations are in place in those states where the institution has enrolled students or is otherwise active based on state definitions.
In August of 2012, U.S. Department of Education issued a Dear Colleague letter on state authorization, part of the program integrity regulations. Question 7 made clear that the Department will not be enforcing 600.9(c), which extends state authorization requirements to distance education in a state in which the institution is not physically located. A few other items of note in the letter include:
- Institutions may use links to web sites that contain multiple states’ contact information for filing complaints. An institution must include a state’s complaint contact information even if it has only one student in that state. If an institution is aware that a student has moved to another state, it must provide the information for filing complaints in that state. SUNY permissibly uses SHEEO’s link and advises campuses to do the same (http://www.suny.edu/provost/dlo/dl_outofstate.cfm).
- An institution isn’t required to immediately update its Eligibility and Certification Approval Report (ECAR) with state authorization information, but should include that information when it applies for recertification.
- Students who attend one or more locations of an institution where the students cannot complete more than 50 percent of a program are considered to be enrolled at the main campus—those locations do not have to be listed on the E-App or included on the ECAR. Internships and clinical programs count toward the 50 percent.
- If an institution offers a program that requires students to take courses at an institution is another state (with which it has an agreement), the coursework is considered to part of a program offered by the first institution (unless the student is required to enroll separately in the out-of-state institution). The institution must determine what, if any, state approvals are necessary for it and the cooperative institution, and must provide to students the contact information for complaints.
Although the U.S. Department of Education will not be penalizing distance education providers for being out of compliance with applicable state laws, states are on notice that institutions are operating under their definitions and are starting to enforce. Some have sent cease and desist letters to institutions that are subject to state laws (perhaps they meet the definition of physical presence, or that state is regulating any distance education program providing degree programs to residents of that state), and others have sent out notices regarding updated rules and rule interpretation (recently, Maryland and Texas). Campuses are urged to continue to seek authorization in states where they enroll students in distance education coursework and/or have physical presence and are required to have such authorization to continue these activities. We also will continue to make available resources provided by the Provost’s office to make sure they campuses are in compliance in any state where they are required to register. Many states have provided SUNY with explanations of what kind of activities trigger the authorization requirement, and some have provided questionnaires for campuses to fill out so the state can make a determination based on the responses. The letter’s text is available here: http://ifap.ed.gov/dpcletters/attachments/GEN1213Attach.pdf
Applicable Laws and Regulations
U.S. Department of Education January 23, 2013 Dear Colleague Letter
SUNY State-By-State Authorizations
SUNY System Administration's Office of the Provost maintains an extensive, up to date listing of the State Authorizations rules and responses from the State for SUNY campuses.The links below will lead to State-by-State charts mapping the various State Authorization rules. SUNY System Administration has requested an exemption from authorization from each state. Based on the responses we have received, campuses may need to notify students studying in particular states that they cannot register for distance education courses, or seek individual authorization from those states.
SUNY's State-by-State Responses received by SUNY regarding State Authorization Exemption - Information on the responses sent to SUNY's Office of the Provost from the State's regarding the request for exemption
The Office of the Provost is continuing to contact those states that have not yet responded to the request for exemption. Based on the responses we receive, campuses may need to notify students studying in particular states that they cannot register for distance education courses, or seek individual authorization from those states.
SUNY students should attempt to resolve complaints with the SUNY school itself. The Student Handbook usually describes the appropriate procedures. However, the U.S. Department of Education regulations require each State to have a process to handle complaints for all institutions in the State, except Federally run institutions (including the service academies) and tribal institutions such as tribally controlled community colleges. For purposes of HEA eligibility under these regulations, the State remains responsible for responding to complaints about institutions in the State regardless of what body or entity actually manages complaints.
Institutions delivering courses by distance education are required to provide students or prospective students with contact information for filing complaints with the State approval or licensing entity in the student’s state of residency and any other relevant State official or agency that would appropriately handle a student's complaint. The State Contact Information in the linked list has been collected by the State Higher Education Executive Officers (SHEEO), and it is updated as additional information becomes available. SHEEO provides further resources relating to state authorization of distance education - click here. Each SUNY campus delivering distance education in other states may use the linked SHEEO list of State Complaint Information and should acknowledge SHEEO for this document.
The information contained on the SUNY Compliance website is for general campus guidance only and is not intended, nor can be relied upon, as legal advice or the imposition on SUNY campuses of specific policies or requirements. The site is intended to be an informational-only clearinghouse for some of the laws, rules, and regulations that may impact the State University of New York’s campuses. Additionally, given the rapid, changing nature of laws, rules and regulations, there may be delays or omissions contained on this site which therefore cannot be relied upon as complete. For complete compliance information, consult your campus compliance officials or the SUNY Compliance Administrator. For legal advice, consult your lawyer.