Update ON STATE AUTHORIZATION for DISTANCE EDUCATION: Regulations & RECIPROCITY Legal Issues in Higher Education December 12, 2013 Russ Poulin Deputy Director, Research & Analysis rpoulin@wiche.edu WICHE Cooperative for Educational Technologies wcet.wiche.edu

State Authorization Overview Agenda State Authorization Overview Basic Principles State Regulations Federal Regulation State Authorization Reciprocity Agreement (SARA) What Should Your Institution Be Doing?

State Authorization – Basic Principles If your institution is in one state and you are serving a student residing in another state, then you should check for authorization.

State Authorization – Basic Principles Basic Principle 2: Two types of authorization in each state: 1) Institutional – all activities you do in a state. 2) Licensure – professional programs.

State Authorization – Basic Principles Basic Principle 3: The answer to nearly every question is: IT DEPENDS!!!!!

If you are only offering for-credit, distance education in a state, State Regulations If you are only offering for-credit, distance education in a state, eight require authorization: Alabama Arkansas Iowa Maryland Minnesota Montana Wisconsin Wyoming http://www.sheeo.org

If you are only offering for-credit, distance ed in a state, State Regulations If you are only offering for-credit, distance ed in a state, six require that you seek an exemption or register with them: Alaska Illinois Nebraska N. Dakota Oregon Utah http://www.sheeo.org

State Regulations But beware triggers of physical presence: Physical Location Administrative Office Direct Marketing Localized Advertising Required Proctoring Contracted Services Practical Experiences (clinical, student teaching) Having an Employee in a State http://www.sheeo.org

Federal Regulation – Chapter 34, §600.9(c) “If an institution is offering postsecondary education through distance or correspondence education to students in a State in which it is not physically located or in which it is otherwise subject to State jurisdiction as determined by the State…” http://www.tinyurl.com/mazquyl

Federal Regulation – Chapter 34, §600.9(c) “…the institution must meet any State requirements for it to be legally offering distance or correspondence education in that State. An institution must be able to document to the Secretary the State’s approval upon request.” http://www.tinyurl.com/mazquyl

Federal Regulation – Chapter 34, §600.9(c) “…the institution must meet any State requirements for it to be legally offering distance or correspondence education in that State. An institution must be able to document to the Secretary the State’s approval upon request.” http://wcetblog.wordpress.com/2012/07/30/usdoe-will-not-enforce/ http://wcetblog.wordpress.com/2013/11/22/federal-state-authorization-regulation-its-baaaack-almost/

State Authorization Reciprocity Agreement (SARA) – Key Points States and territories regulate higher education within their borders, with varying requirements At present, there is no alternative to each institution separately pursuing any needed approvals Requires a comprehensive national model serving all interests and support quality. Must deal with poor institutional behavior. States must be able to trust other states.

Who Was Involved in Drafting SARA? Presidents’ Forum (of Excelsior College) and Council of State Governments. Regional higher education compacts (MHEC, NEBHE, SREB, WICHE). Commission on the Regulation of Postsecondary Distance Education, committee of SHEEO and APLU.

Essential Principles of SARA Voluntary for states and institutions. Acknowledges traditional roles within higher ed’s “accountability triad”: states, accrediting, and federal government. Framework for reciprocity, including: governance, implementation, a National Council, and a financial plan.

Regional Compacts MHEC NEBHE WICHE SREB

Essential Principles of SARA… “Home” state approves in-state institutions for SARA and resolve complaints. SARA states agree to impose no additional (non-SARA) requirements. Open to degree-granting postsecondary institutions from all sectors Sets forth a reasonable, uniform set of triggers of “physical presence”.

Essential principles of SARA… Initial funding from Lumina Foundation, eventual reliance on institutional fees. LT 2,500 FTE: $2,000 2,501 – 10,000 FTE: $4,000 GT 10,000 FTE: $6,000

Issues SARA Does Not Address Professional licensing board approval for programs leading to licensing: nursing, teacher education, psychology, etc. Non-credit instruction.

What do states need to do? Regional compacts invite and work with their states. Determine if the state wants to participate. Make any needed changes to statutes or rules. Identify agency(ies) to solicit and approve participation of in-state institutions and resolve complaints.

What do states need to do? Identify “portal” agency (if needed). Adopt in-state funding model (if needed). Develop and submit SARA plan to the state’s regional compact.

What do institutions need to do? Wait for their state to join. Determine if the institution wants to participate. Apply to state showing how institution meets the “Interregional Guidelines for the Evaluation of Distance Education.” http://www.msche.org/publications/Guidelines-for-the-Evaluation-of-Distance-Education-Programs.pdf

Benefits to students Expands access to educational offerings. Should lead to better resolution of complaints from students in SARA states. Reduces a rapidly growing institutional cost that is passed along to students. Should enhance overall quality of distance education.

What is your institution doing (or not doing) about state authorization? Survey – March 2013 1) No action taken. 2) Initial steps, no formal contacting a state. 3) Contacted states, no application. 4) Applied to one or more states. 5) Applied/received ALL authorizations. http://wcet.wiche.edu/wcet/docs/state-approval/UPCEA/2013UPCEA-WCET-SloanCStateAuthorizationReport_FULL.pdf

What is your institution doing (or not doing) about state authorization? http://wcet.wiche.edu/wcet/docs/state-approval/UPCEA/2013UPCEA-WCET-SloanCStateAuthorizationReport_FULL.pdf

What should your institution be doing? Proceed, Don’t Wait Reciprocity will take time. Will your state join? Promote SARA. Will states where you have students join? Federal regulation seems likely to return. Compliance window might not be long. States won’t do you any favors.

What should your institution be doing? Make Decisions Strategically Prioritize which states to do first. Those with most students. The “easy” ones. Include key personnel (president, provost, counsel, department heads) in key decisions. Assess your adversity to risk.

Learn More About State Authorization and SARA NC-SARA website: http://nc-sara.org WCET website: http://wcet.wiche.edu/advance/state-approval WCET State Authorization Network http://wcet.wiche.edu/advance/state- authorization-network

Learn More About State Authorization and SARA SHEEO (list of state regulations) http://www.sheeo.org Regional compacts MHEC: http://www.mhec.org NEBHE: http://www.nebhe.org SREB: http://www.sreb.org WICHE: http://www.wiche.edu

Thank you! Russ Poulin Deputy Director, Research & Analysis WCET – WICHE Cooperative for Educational Technologies rpoulin@wiche.edu http://wcet.wiche.edu