As you have undoubtedly heard by now, the Department of Education 2019 Negotiated Rulemaking on Accreditation and Innovation has reached a consensus, surprising many. Consensus means that the negotiating committee reached agreement on all topics. Under the protocols, if the committee reached a final consensus on all issues, the Department of Education would use the consensus-based language in its proposed regulations. The Department would not substantively alter the consensus-based language unless the Department reopened the negotiated rulemaking process or provided a written explanation to the committee members.

There were three topics the issues were divided into:

  • Accreditation, Definition of a Credit Hour, and Byrd Scholarship
  • TEACH Grant and Religious Freedom
  • Distance Education, State Authorization for Distance Education and Competency

For all intents and purposes, we will take a deeper dive into the new regulations regarding state authorization. There are two areas addressed:

  • 34 CFR 600.9 (c) – State Authorization
  • 34 CFR 668.50—Public Disclosures

The Federal Register with the regulations can be viewed at the following website.

Top Things to Know About the 2019 Federal Regulations

State Authorization

  • Institutions must meet any state requirements in the states the institutions offer distance education programs in, and have evidence, or document the institution’s participation and coverage by a reciprocity agreement, like NC-SARA.
  • Institutions must explain the consequences to students who change their state of residence.
  • Residence vs Location –The Negotiated Rulemaking Committee agreed with the Department to remove the concept of “residence” from regulations and replace it with “location.” By referring to a student’s “location” as opposed to his or her “residence”, the Department intends to make its regulations more consistent with existing state requirements to ensure that students who have not established legal or permanent residence in a state benefit from state requirements for an institution to offer distance education and correspondence courses in that state. An institution will make a determination regarding the student’s location at the time of the student’s initial enrollment in an educational program and upon formal receipt of information from the student that the student’s location has changed.

Complaint Process

  • Institutions must document that there is a state process for reviewing complaints and taking appropriate actions in each state where a student resides or through a reciprocity agreement.
    • The only state not to have a complaint process in place was California, who quickly worked to implement one after the lawsuit ruling. The contact information for the office processing complaints in California can be found here.
  • Institutions must have a description of the process for consumer complaints as the state agency in the state the institution is located, or as designated by the reciprocity agreement.

Disclosures

  • There are two types of disclosures: Public Disclosures and Individual Disclosures
    • Public Disclosures are often accomplished by posting on a website, whereas Individual Disclosures are sent directly to a student or potential student via mail or e-mail.
  • While the 2016 federal regulations requires an institution to provide notifications to students enrolled in distance education programs, the 2019 federal regulations requires an institution to provide notifications to all students in programs leading to professional licensure, regardless of modality, whether completion of the program will meet educational licensure requirements in a state for that occupation.
    • If the institution has made the determination that the program’s curriculum does not meet the state educational requirements for licensure or certification in the state in which a prospective student is located, if it does meet the state educational requirements, or if the institution has not made a determination regarding the requirements, the institution must provide notice to that effect to the student prior to the student’s enrollment in the program. Basically, programs leading to professional licensure will need to generally disclose on a website if they meet a state’s requirements, do not meet a state’s requirements, or they cannot determine whether the program meets the requirements.
    • If the institution makes a determination that the program’s curriculum does not meet the state educational requirements for licensure or certification in a state in which a current student is enrolled, the institution must provide notice to that effect to the student within 14 calendar days of making the determination.
  • For a prospective student who goes ahead and enrolls in an online degree program after receiving a notification/disclosure about the program not meeting the prerequisites, the institution must receive acknowledgement from the student that they did receive the disclosure and understand it. The institution must have a receipt of the student’s acknowledgement. This can be done with an e-mail or when the student signs an enrollment agreement, for example.

Implementation Date

  • The implementation date is July 1, 2020. However, there is chatter that the Department of Education will implement the 2019 federal regulations for state authorization early as they did for the Borrower Defense to Repayment Final Federal Regulations.
    • Early implementation is available for the following sections of the Borrower Defense (the implementation date of the remaining sections is still July 1, 2020):
      • Section 668.172(d)
      • Appendix A to Subpart L of Part 668
      • Appendix B to Subpart L of Part 668