Tag: federalism

Now that the Kabuki Theatre of the Department of Education’s negotiated rulemaking process has finished its penultimate act, can we all act surprised that the likely result includes the proposed State Authorization regulations growing by a factor of 25 with no comments allowed by one of the groups most affected?

The gist of State Authorization is to force distance education and correspondence programs to comply not only with their home state regulations but to also comply with regulations for any state of residence for students. The proposed regulations from 2010 (struck down by courts in 2011) came in at 75 words:

§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, 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.

The most recent submission from DOE comes in at 1,912 words. You can read the full text here. This growth in regulatory language will have real costs. Today the president of Saint Leo College described how much of the administrative bloat in campuses is due to increasing federal regulations.

Let me be clear, not all of the increases in college tuition and administrative bloat are caused by regulation, but some are—and far more than you think.

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The Department of Education (DOE) released their proposed State Authorization regulations this week as part of the negotiated rulemaking process that seeks to replace previous rules struck down by courts in 2011. While the new process is more transparent than before (which was the basis of the court rulings), the proposed rulings would represent a dramatic increase in federal control of distance education and compliance burden for institutions. Greg Ferenbach from Cooley LLP noted these changes in a listserv discussion at WCET [used by permission from author, emphasis added]:

What I don’t think many folks appreciate … is this proposal would be a huge change from the way things work today. From a quick read, it appears as though the proposal would require all states to authorize distance ed (with no exemptions for accreditation, etc.). Basically, this would be a mandate to either obtain specific state approval or participate in reciprocity as a condition for continuing to offer distance education with federal aid.

Note that this is quite different from the last rule, which only mandated that you need to meet state requirements, if any, and thus it appears to impose a huge new burden on states and institutions. Think at least double.

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