Recap: At the end of April, there was a court ruling from the 2016 Delayed State Authorization Federal Regulations Lawsuit that the 2016 federal regulations would become effective. The U.S. Magistrate Judge Laurel Beeler sided with the National Education Association, finding the delay of the regulations illegal. The ruling was delayed by a month and went into effect May 26, putting the 2016 regulations into effect. The Department of Education released a guidance on July 2nd that provided there needed to be a complaint process in place for students. California did not have a process in place. Concern grew about the tens of thousands of students who would not have access to Title IV Funds. California quickly moved forward to institute a process. Despite some “compliance challenges”, the Department of Education accepted it as okay.    

The 2016 Distance Education Regulations That Are Currently In Effect:

State Authorization – 34 CFR 600.9

  • An institution engaged in distance education opportunities with students residing in other states must meet the requirements of those states, if any. Or, the institution must participate in a reciprocity agreement, such as NC-SARA. The institution must be able to provide documentation that they have obtained the proper authorization if requested.
  • The institution must document there is a process for reviewing complaints and taking appropriate actions in either of two ways: in each state in which the institution has a student enrolled, or through a reciprocity agreement (NC-SARA).
  • In the event a student changes their state of residence, the university must explain the consequences to the student.

Institutional Disclosures for Distance or Correspondence Programs – 34 CFR 668.50

  • There are two types of disclosures: General and Individualized Disclosures. The General (or public) disclosures can often be accomplished by posting on a website, while the individual disclosures are sent directly to a current student or prospective via mail or e-mail.
    • General Disclosures:
      • Authorization: How the distance education program is authorized, whether by state licensing agency or NC-SARA, for each state in which enrolled students reside.
      • Consumer Complaints: How to submit complaints in the state in which the main campus is located or through NC-SARA as well as how to submit complaints to the appropriate state agency in the student’s state of residence.
      • Adverse Actions: Any adverse action taken by a state or accrediting agency against a distance education program for the previous five calendar years prior to the year of the disclosure.
      • Refund Policies: Any applicable state refund policies by a state in which the enrolled students reside.
      • Licensure Requirements: The institution must provide applicable licensure or certification requirements for a career a student prepares to enter, and whether the program meets those requirements, does not meet those requirements, or the institution has not made the determination that it meets those requirements. This must be done in each state where students reside. If the institution finds out the program no longer meets the state’s requirements, it must notify the student within 14 days.
    • Individualized Disclosures:
      • Licensure: To all prospective students (prior to enrollment), when a distance education program or correspondence course does not meet state prerequisites for professional licensure or certification in the state the student resides.
      • Adverse Action: When an adverse action is taken against an institution’s purely online distance education programs, to each enrolled and prospective student, within 30 days of awareness of the action.
      • Change in Licensure Requirements: Any determination that a program no longer meets licensure or certification requirements to each enrolled and prospective student for a state in which a student resides, within 14 days of the determination. A “prospective student” is any individual who has contacted the institution requesting information concerning admission. If a prospective student has received a disclosure about a program not meeting the prerequisites and does enroll in the program, the institution must receive an acknowledgement from that student that they did receive the disclosure and demonstrated receipt of the student’s acknowledgement. Acknowledgement can be combined with other acknowledgements such as in the enrolment agreements or as an e-mail link acknowledging receipt.

 Now What?

Institutions must know exactly where their distance education students are located. Institutions must have received the appropriate authorization for their programs, whether through NC-SARA or state by state, in addition to separate approval for any licensure programs. Institutions may want to work with their legal counsel for guidance regarding the 2016 regulations. For more information, WCET Frontiers recently published a helpful article on everything you need to know about the 2016 distance education regulations. With the new proposed regulations that are set to take effect July 1, 2020, institutions must work to get the 2016 regulations in place (if not already in place), and work to get the new regulations in place prior to the effective date. The Department of Education has expressed interest in expediting the 2019 regulations. The DoE has not elaborated if they will, in fact, do this, or if it will be all of the rules or only part of the rules. Stay tuned!