Career education review and ritzert & leyton, P.C. webinar series: “The DEPARTMENT OF EDUCATION’S STATE AUTHORI

1. Career education review and ritzert & leyton, P.C. webinar series:“The DEPARTMENT OF EDUCATION’S STATE AUTHORIZATION RULE” May 15, 2014

2. disclaimer • The Views Expressed In This Presentation Are Those Of The Speaker(s) Only. • The Contents Of This Presentation Does Not Constitute Legal Or Regulatory Advice. No One Should Act Or Refrain From Acting On The Basis Of This Presentation Without Seeking Individualized, Professional Counsel As Appropriate.

3. OUTLINE OF DISCUSSION • Department of Education State Authorization Rule - 34 C.F.R. § 600.9 • Purpose and Statutory Basis • Legal History • Interpretation of the Current Federal Rule • Implementation Timeline and Enforcement • Ongoing Negotiated Rulemaking - Distance Education and Correspondence Courses, Foreign Locations 3. SARA and State Exercise of Jurisdiction Over Distance Education

4. STATE AUTHORIZATION RULE – PURPOSE • TO ADDRESS DEPARTMENT OF EDUCATION CONCERNS THAT– • Under the Higher Education Act, States have an important role in the Federal/Accreditor/State triad of gatekeepers of institutional eligibility standards for Title IV funding, yet some States have been delegating their role to accreditors by, for example, providing State law exemptions that function as waivers of State oversight. • As a result, the Department of Education believes there is a need to establish certain minimum requirements for State oversight of postsecondary education as a condition of Title IV institutional eligibilityonly. • The Department does not view the regulation as an impermissible federal directive to States (and the D.C. Circuit agrees), because States are free to act or not act in a manner that will ultimately impact only a school’sTitle IV eligibility. See Preamble, Final Rule, 75 Fed. Reg. 66832-66975 (Oct. 29, 2010)

5. STATE AUTHORIZATION RULE – STATUTORY BASIS • The Higher Education Actrequires that, as a condition of participation in Title IV student financial aid programs, an institution of higher education (whether public or nonprofit, vocational or proprietary) must be“legally authorized within such State to provide a program of education beyond secondary education” (20 U.S.C. §§1001, 1002)

6. STATE AUTHORIZATION RULE – LEGAL HISTORY The D.C. Circuit Court reversed the district court decision that APSCU lacked standing to challenge the State authorization regulation and reached a decision on the merits that the Department’s State authorization rule complies with the Administrative Procedure Act because it is based on HEA statutory authority and “reasoned decision-making,” and thus not arbitrary or capricious. D.C. Circuit accepted the portion of ED’s rationale based on perceived problems to students caused by the prior California oversight agency lapse of oversight and “anecdotal” evidence of State-shopping by schools looking to locate in States with weak oversight. Upshot: Department of Education has authority to require minimum standards under State law in order for institutions to be Title IV eligible and is free to fully implement 34 CFR 600.9(a) and (b).

7. STATE AUTHORIZATION RULE – LEGAL HISTORY • The D.C. Circuit upheld the District Court’s decision to vacate the portion of the October 29, 2010 Final Rule that would have provided authority to the Department of Education to establish authorization requirements for schools offering distance education in States where they do not have a physical presence (i.e, the State in which the student, not the institution, is located) . • The D.C. Circuit agreed with the District Court that the regulation violated the Administrative Procedures Act because the Department failed, by not including the issue in the negotiated rulemaking or proposed rule, to provide adequate notice of the distance education portion of the rule to regulated parties. SeeAPSCU v. Duncan, 681 F.3d 427 (D.C. Cir. 2012) Practical Effect: 34 CFR 600.9(c) is vacated and cannot be enforced. As a result, ED initiated the current Negotiated Rulemaking session on distance educationto re-establish a distance education /correspondence course State authorization rule. .

8. STATE AUTHORIZATION RULE – LEGAL HISTORY Vacated 34 CFR 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 locatedor in which it is otherwise subject to State jurisdiction as determined by the State, the institution must meet any State requirements for it to be legally offering postsecondary distance or correspondence education in that State. An institution must be able to document to the Secretary the State’s approval upon request.”

9. STATE AUTHORIZATION RULE – LEGAL HISTORY • NOTE WELL: • Institutions are still, for Title IV purposes, required to comply fully with current State laws applicable to their institutions and Title IV eligible programs, including State laws applicable to distance or correspondence education. See DCL GEN-12-13. • 34 CFR 602.28(a)– An institutional accrediting agency may not accredit or pre-accredit institutions that lack legal authorization under applicable State law to provide a program of education beyond the secondary level.

10. FEDERAL STATE AUTHORIZATION RULE – LEGAL HISTORY • NOTE WELL: The legal decision vacating the distance education portion of the rule actually energized, in many cases, State exercise of jurisdiction over non-resident schools providing educational services (often defined as credit bearing courses or programs) to students residing in that State. As a result, notwithstanding the absence of a federal State authorization rule for distance education, institutions of higher education have had to take steps to assess the status of law in the States in which their students reside and, where necessary, come into compliance with current State law. It has become a necessary cost of doing business to know and monitor changes in State law that may affect an institution’s legal obligations, at least until a critical mass of States agree to reciprocity for a uniform measurement of State oversight for distance education purposes that reduces cost and burden.

11. CuRRENT FEDERAL STATE AUTHORIZATION RULE – REQUIREMENTS

12. CuRRENT FEDERAL STATE AUTHORIZATION RULE – REQUIREMENTS

13. CuRRENT FEDERAL STATE AUTHORIZATION RULE – REQUIREMENTS

14. ADDITIONAL GUIDANCE – DCL GEN-12-13 (July 2012) – “ESTABLISHED BY NAME” • 600.9(a)(1)(i)(A)- A [public, private nonprofit, or for-profit institution] established by name as an educational institution by a State through a charter, statute, constitutional provision, or other action issued by an appropriate State agency or State entity and is authorized to operate educational programs beyond secondary education, including programs leading to a degree or certificate. • Q2/A2: Articles of incorporation that establish the institution by name and identify its purpose as offering postsecondary education can meet the “established by name” requirement “if the institution can demonstrate that the State played an active role in authorizing the entity to provide postsecondary education.”

15. ADDITIONAL GUIDANCE – DCL GEN-11-05 (MARCH 2011) – “ESTABLISHED BY NAME” • Under 600.9(a)(1)(i)(A), articles of incorporation may meet the requirement for an institution to be “established by name” as a postsecondary educational institution “if the articles are for the establishment of a postsecondary institution and the institution is incorporated by name” but not if “the articles of incorporation are the same as articles of incorporation for a business or nonprofit entity in the State.” This goes to the “active role” requirement. • A letter issued by a State naming an institution would not satisfy the “other action” requirement in 600.9(a)(1)(i)(A). The legal instrumentality in the State with authorization over the institution’s existence must take the “other action.”

16. ADDITIONAL GUIDANCE – DCL GEN-13-20 (August 2013) – “OTHER ACTION” • Under 600.9(a)(1)(i)(A), an educational institution must demonstrate that it has been established by name as an educational institution by a State through a specified method or by “other action issued by an appropriate State agency or State entity.” Institution must provide acceptable documentation to ED including but not limited to: • Documentation that names the institution as a participant in a State Grant Program where its students receive State funds that are provided only to students attending postsecondary institutions in the State. • Documentation from an in-State institution that it has an articulation agreement with a public postsecondary institution in the State for transfer students from the institution to receive credits at the postsecondary level for courses completed at the institution. Must include both articulation agreement and credit transfer policy of the public postsecondary institution.

17. ADDITIONAL GUIDANCE – DCL GEN-13-20 (AUGUST 2013) – “ACTIVE ROLE” • 34 CFR 600.9(a)(1)(ii)(A) – An institution established to conduct business in the State or to operate as a nonprofit charitable institution must show that the State took an “active role” in approving or licensing the institution. Examples -- • An institution simply paying a fee to a State agency to receive an approval or license without an additional process to evaluate the institution to offer postsecondary educational programs is not an “active role”. • State approval for a GED program would not meet the requirement for State approval of a postsecondary program. • Agencies issuing licenses for both secondary and postsecondary programs may not meet this requirement if it not apparent to the public that the institution has been authorized to provide postsecondary programs.

18. ADDITIONAL GUIDANCE – DCL GEN-13-20 (AUGUST 2013) – POSTSECONDARY PROGRAMS • For an institution not established by name as an educational institution in the State, but instead established to conduct business or operate as a nonprofit charitable institution, the State must approve or license the entity as an educational institution “to offer programs beyond secondary education” under 34 CFR 600.9(a)(1)(ii)(A). • “If an institution’s documentation of State approval to offer educational programs does not show that the programs it provides are postsecondary, the institution can show that the State agency is only authorized to resolve applications from postsecondary institutions.” • If the State agency that issues the license does so for both secondary and postsecondary programs, it must be clear to the public, and supported by agency regulations and the licensure process, that the institution has been authorized by the State to provide postsecondary educational programs.

19. License by means of Accreditation • Department of Education approved Florida Commission for Higher Education’s LBMA process and requirements as compliant with the State authorization rule because the State provided evidence that: • Approval process is not simply a waiver of State requirements based on accreditation. • Florida retains an active role in authorizing institutions and there are numerous other requirements in addition to submission of accreditation materials. • Therefore, LMBA is an alternative licensure process under State law, not simply a waiver of State law. • Institutions licensed by means of accreditation had access to the CIE complaint process.

20. EXEMPT Educational InstitutioN • 600.9(a)(1)(i)(A)- A public, private nonprofit, or for-profit institution established by name by a State through a charter, statute, authorized by the State to offer postsecondary education in its articles of incorporation, or other action by an appropriate State agency or State entity. • Department has significant backlog of inquiries pending about status of exempt institutions • Appears to be a very fact-specific, case by case analysis by the Department. • Possible problem States based on exemption rules: AK, CA, GA, HI, MT, NM, OR, SD, TX, UT • The Department has given some signals that it may not consider for-profit institutions to meet this definition. • Case by case determination. • Uncertainty remains regarding any non-public institution operating under a State-granted exemption based on accreditation, years in operation, or similar criteria.

21. OTHER OPEN ISSUES/Questions • State Agencies Where Secondary/Postsecondary Jurisdiction is Blurred • Trucking, cosmetology – can State approval body show/does State approval body want to take the position that their authority includes specifically authorizing “postsecondary institutions to offer programs beyond secondary education”?

22. STATE AUTHORIZATION RULE – COMPLAINT PROCESS • 600.9(a) – • “An institution is legally authorized by a State if the State has a process to review and appropriately act on complaints concerning the institution including enforcing applicable State laws.” • This is a separate, stand-alone requirement that must be met to satisfy the rule.

23. STATE AUTHORIZATION RULE – COMPLAINT PROCESS • March 17, 2011 (DCL GEN-11-05): • Regarding a State complaint process, the Department will only recognize a delegation of responsibility for handling complaints where the State remains the final authority, such as through a State Attorney General’s office, or a more specialized State entity. After considering a complaint, that State entity may refer it to other appropriate entities for final resolution.

24. STATE AUTHORIZATION RULE – COMPLAINT PROCESS - CONSUMER DISCLOSURE • 668.43(a) – Added in Final Rule - • “The institution must provide its students or prospective students with contact information for filing complaints with its accreditor AND with its State approval or licensing entity AND any other relevant State official or agency that would appropriately handle a student’s complaint.” • DCL GEN 12-13 states that: the information may be provided on school website if prominent and accurate, you may use a link to a 3rd party list or site that contains the information, and that all students taking any course or program from the institution must be provided with the State agency that would handle complaints for that student, including the State agency information applicable to students taking a portion of their program from an institution located in another State.

25. IMPLEMENTATION TIMELINE – STATE AUTHORIZATION RULE • October 29, 2010 Final Rule (75 Fed. Reg. 66863): • An institution’s State authorization must meet requirements of rule by July 1, 2011 but recognizes a State may not be able to provide appropriate State authorizations by that date. For institutions unable to comply by July 1, 2011, the Department permitted a one-year extension until July 1, 2012 and a second extension until July 1, 2013, where necessary. “To receive an extension of the effective date of the rule for institutions in a State, an institution must obtain from the State an explanation of how a one-year (and second year) extension will permit the State to modify its procedures to comply with amended 600.9.

26. IMPLEMENTATION TIMELINE – STATE AUTHORIZATION RULE • August 22, 2011 (ED electronic announcement): Describes the steps required to obtain a one year extension to July 1, 2012 and, if necessary, second extension until July 1, 2013 to comply with the rule: • Institution must obtain from the State a written explanation of how the one-year extension will permit the State to modify its procedures so that the institution is able to comply with the rule. The explanation may apply to multiple institutions in a State. If the institution needs a subsequent one-year extension until July 1, 2013, the institution must obtain a further written explanation of how the additional one-year will permit the State to modify its procedures so that the institution can comply. • Institutions should obtain and maintain this documentation without the involvement of the Department as an intermediary and should have it on hand if the Department asks for it.

27. IMPLEMENTATION TIMELINE – STATE AUTHORIZATION RULE • January 23, 2013 (DCL GEN 13-04) – The Department reminded institutions of their obligation to comply by July 1, 2013. Language addressed States’ need to work with licensed institutions to meet the requirements of the rule. • May 21, 2013 (78 Fed. Reg. 29652) – Provides for an additional one-year delay, until July 1, 2014, in implementation if an institution can demonstrate that the extension will allow it to come into compliance with the regulation by July 1, 2014. The institution is required to obtain an explanation from the State regarding “how an additional one-year extension will permit the State to modify its procedures to comply” and the institution must have that document on file to provide to Department staff upon request.

28. IMPLEMENTATION - ENFORCEMENT • Title IV Certification • Title IV Re-Certification • Program Review • OIG Audit • Change of Ownership • Accreditation Reviews – 34 CFR 602.28(a) • Complaints to ED or copied to ED

29. IMPLEMENTATION - ENFORCEMENT • Students/Public – 34 CFR 668.43(b) – State authorization documents must be made available to students and prospective students for review. Misrepresentation rule requires truth and accuracy. • Professional Licensure: Must be vigilant as to State requirements for institutional authorization for professional licensure in the State. • Gainful Employment Program Certifications (NPRM version) - must certify that program meets all State licensing requirements (State program approval may be necessary)

30. CONSEQUENCES • STATE • If a State refuses to act to come into compliance with the rule, students attending affected postsecondary institutions in the State will not be eligible for Title IV funds. • Agency action via cease/desist letter – stop enrollments, advertising, etc. • Graduate professional licensing issues if institution is deemed out of compliance with State law • Unfair/deceptive practices – advertising in State • FEDERAL • Department of Education – Institutional Eligibility determination • Liability for Title IV funds disbursed during time that institution was ineligible due to faulty State authorization

31. ONGOING StATE AUTHORIZATION RULEMAKING • Meetings Held: • Session 1: Session 1: February 19-21, 2014Session 2: March 26-28, 2014Session 3: April 23-25, 2014Session 4: May 19-20, 2014 -- ADDED ** • Next Steps: • After negotiations are concluded, a Notice of Proposed Rulemaking will be published announcing an open public comment period before a Final Rule is published. • If Final Rule published by November 2014, a July 1, 2015 effective date is possible.

32. ONGOING StATE AUTHORIZATION RULEMAKING • Scope of Discussions: • Revising vacated 600.9(c) regarding requirement for State authorization for institutions providing distance education or correspondence courses to students in another State. • Authorization of Foreign Locations of U.S. institutions.

33. State authorization rulemaking – AS OF aPril 2014 mEETING • 600.9(c)(1)(i)(A)(1) - Legal authorization for an institution that offers or will offer 50% or more of a postsecondary program through distance or correspondence education to students in that State must be based on the following: • The State has a process to review and appropriately act in a timely manner on complaints concerning the institution, including enforcing applicable State law, and has final authority to resolve complaints and enforce applicable law; AND

34. State authorization rulemaking – AS OF aPril 2014 mEETING • 600.9(c)(1)(i)(A)(2) - The institution meets State requirements that it be approved or licensed by name – (i) By the State to offer postsecondary distance or correspondence education, including programs leading to a degree or certificate, in that State; OR • (ii) To offer postsecondary distance or correspondence education, including programs leading to a degree or certificate, in that State under a State-to-State agreement administered by the participating States, OR

35. State authorization rulemaking – AS OF aPril 2014 mEETING • 600.9(c)(1)(i)(A)(2) The institution meets State requirements that it be approved or licensed by name – (iii) To offer postsecondary distance or correspondence education, including programs leading to a degree or certificate, by a State that approves and annually reviews the administration of a State authorization reciprocity agreement administered by a non-State entity.

36. State authorization rulemaking – AS OF aPril 2014 mEETING • 600.9(c)(8)(i) – An institution is not considered legally authorized to offer distance education for Title IV purposes if it is exempt from State approval or licensure requirements solely based on accreditation, years in operation, or other comparable exemption. EXCEPT -- • State is not considered to have exempted the institution under this section if the State has an active process that examines the institution and its programs [last draft removes specific criteria that the agency must review] • Grandfather clause for currently exempt institutions for Title IV purposes for students enrolled on or before June 30, 2018 in an eligible distance or correspondence program, for the duration of the student’s program. • One year additional extension possible if school can present evidence the State has initiated but not completed the process of replacing the exemption with an “active” process or the school’s application remains pending.

37. State authorization rulemaking – AS OF aPril 2014 mEETING • 600.9(c)(1)(i)(B) – The requirements in paragraph (c)(1)(i)(A)(2) are deemed satisfied if an institution’s total enrollment of students who have commenced attendance in distance or correspondence education in a State does not exceed 30 students during the prior award year, excluding any member of the armed forces (or spouse or dependent child) who receive Title IV under 600.9(c)(11).

38. State authorization rulemaking – AS OF aPril 2014 mEETING • 600.9(c)(1)(ii) – Notwithstanding paragraph (c)(1)(i) of this section, the institution meets the additional requirements for legal authorization in that State as the State may establish. • 600.9(c)(2) – Institution under (1) must meet consumer complaint process disclosure requirements under 668.43(b) [current law] • 600.9(c)(3) – Institutions providing 100% distance education must demonstrate they are legally authorized in their home State (principal office) and must provide Secretary documentation of State authorization if it moves its home State.

39. State authorization rulemaking – AS OF aPril 2014 mEETING • 600.9(c)(5) – An institution with legal authorization under applicable provisions of 600.9(c) is considered legally authorized to provide Title IV funds to a student located in a foreign country. • 600.9(c)(6) – If a State offers approval for distance education programs on a program-specific basis, the institution is legally authorized to provide funding to students in that State who are enrolled in that program only.

40. State authorization rulemaking – AS OF aPril 2014 mEETING • 600.9(c)(12), (13), (14) – Contains notice requirements to students (including prominent posting on website) when an institution loses its State authorization to offer distance education or under certain circumstances when a State within a reciprocity agreement withdraws from that agreement or the organization overseeing reciprocity terminates.

41. State authorization rulemaking – AS OF aPril 2014 mEETING • 600.9(d) – Institution not considered legally authorized for programs in a State if those programs do not meet the educational, programmatic or institutional accreditation requirements for graduates of those programs to receive certification or sit for the licensure or certification exams required in the State in the occupation for which the program is intended to prepare a student UNLESS

42. State authorization rulemaking – AS OF aPril 2014 mEETING • UNLESS the institution obtains written acknowledgment from each student in that State before enrollment that graduation from the program – • Will not fulfill educational, programmatic or institutional accreditation requirements to receive certification or to sit for the licensure or certification examinations in that State AND • That additional coursework, field experience, or other academic requirements must be completed to fulfill the requirements to receive certification, or to sit for the licensure or certification examinations in that State.

43. THE RISE OF THE STATE AUTHORIZATION RECIPROCITY AGREEMENT (SARA) • How it works: • Home State of institution maintains primary jurisdiction. • Participating States agree to uniform definitions of physical presence and offer reciprocity to institutions in other SARA States to allow them to advertise, offer distance education courses and programs, employ faculty and other employees in the State, conduct proctored exams in the State, offer externships and engage in other activities under a set of uniform rules. • The purpose is to promote predictability and uniformity of State law and, ideally, reduce cost of compliance.

44. THE RISE OF THE STATE AUTHORIZATION RECIPROCITY AGREEMENT (SARA) • The uniform standards are developed and managed by regional compact organizations coordinated with a national board. • Legislation will need to be passed by many of the States that join SARA to bring State statutes into line with uniform standards. • Some SARA States are still requiring filing of documents and, in some States, assessing significant application fees. • Specialized professional licensure issues are still being worked out. • However, institutions cannot establish an office or location in a SARA State without proper State approval outside the scope of SARA.

45. REGIONAL SARA ORGANIZATIONS • Western Interstate Commission for Higher Education (WICHE) – www.wiche.edu • Midwestern Higher Education Compact (MHEC) – www.mhec.org • New England Board of Higher Education (NEBHE) – www.nebhe.org • Southern Regional Education Board (SREB) – www.sreb.org

46. STATE AUTHORIZATION RECIPROCITY AGREEMENT • Eligible Institutions: • Nationally or Regionally Accredited • Degree-granting • Public, non-profit or for-profit • Offering distance education and • Located in a State participating in SARA

47. STATE AUTHORIZATION RECIPROCITY AGREEMENT • March 2013 WICHE Cooperative for Educational Technologies (WCET) report finds among institutions surveyed that: • Most are participating in a State-wide, system-wide, or consortium approach to share information to come into compliance with State authorization rules, but only 13% were participating so far in a reciprocal agreement with another State. • One third are choosing not to apply to every State for authorization and deciding not to enroll students from some States based on cost: AR, AL, MD, MA, MN, KS and WI are increasingly avoided. • Reasons for waiting to apply to any State for authorization is based on cost, lack of staff, not a priority , awaiting further clarification from State or Department of Education, or relying on an existing State exemption.

48. STATE bASES FOR ASSERTING JURISDICTION • State license or exemption requirement based on -- • Physical presence- most States still rely on this traditional basis for asserting jurisdiction which can mean under State law -- • Local physical or mailing address, telephone or fax, or call center • Advertising in the State targeted to State residents • Faculty meets with students in the State or deliver course from State • Credit bearing externships/clinics offered in the State • Recruiting, including State licensed recruiters in the State • Offering credit through courses or programs to State residents • Often case by case, need State guidance.

49. State ASSERTION OF JURISDICTION • A degree-granting Institution is 100% on-line (including AK, AL, AR, IA, IL, ND, MD, MN, MT, OR, UT, WI, WY) • Programs as well as institution may need to be authorized • Some States require institutions to file as a foreign corporation as part of the State authorization process including: AL, DC, IA, KY, MD, MT, NC and WA • * Some of these States also require surety bonding in connection with the foreign corporation filings.

50. GE II NPRM - CERTIFICATION • 668.403(a) and 668.414 - An institution must establish the eligibility of a GE program through: • ● Certification In Good Faith and After Appropriate Due Diligence • →For Each Program Through PPA • →By Institution’s Most Senior Executive Officer • ● That a GE Program is included in the Institution’s Accreditation (or for public vocational institutions is approved by a recognized State agency), and • ● That a GE Program satisfies any applicable State or Federal program-level Accrediting or Licensing requirements for the occupations for which the program prepares the student (for each State in which institution is located or any State within the institution’s Metropolitan Statistical Area)