Resolution in Support of States Regarding Proposed Federal Rules on Distance Education

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WHEREAS, The Council of State Governments, in partnership with the Presidents’ Forum, and under the direction of the four regional higher education compacts: the Midwestern Higher Education Compact (MHEC), the New England Board of Higher Education (NEBHE), the Southern Regional Education Board (SREB), and the Western Interstate Commission for Higher Education (WICHE), created the Model State Authorization Reciprocity Agreement (SARA) and oversaw its adoption and implementation at the state level; and

WHEREAS, SARA demonstrates a model effort among states to work together to improve and streamline state distance education approval processes; and

WHEREAS, it is voluntary for states and institutions to join SARA; and

WHEREAS, forty‐four states and the District of Columbia have joined SARA since its creation three years ago; and

WHEREAS, states are responsible for approving their institutions to participate in SARA; and

WHEREAS, approximately 1,200 institutions nationally have been approved by their state to participate in SARA; and

WHEREAS, approximately 96 percent of those institutions are in the public or independent non‐profit sectors; and

WHEREAS, participation in SARA annually saves states and institutions significant money in reduced administrative costs and fees for distance learning course offerings since institutions participating in SARA apply once to their state for approval rather than having to apply to up to fifty states for approval to offer their program(s) via distance education; and

WHEREAS, SARA provides that each participating state take responsibility for regulating the higher education providers residing in their state in accordance with required SARA standards; and

WHEREAS, SARA streamlines state approvals for distance education thereby enhancing students’ ability to participate in distance education programs; and

WHEREAS, the SARA agreement has no impact on state efforts to continue to enforce general consumer protection laws for fraud, abuse and misrepresentation statutes on all schools doing business in their state; and

WHEREAS, the U.S. Department of Education is currently considering rules related to reciprocity agreements for state authorization of postsecondary distance education; and

WHEREAS, in the most recently proposed version of the rule on the authorization of distance education the wording regarding consumer protection can potentially be interpreted differently by each state; and

WHEREAS, such a potential variation in interpretations could lead to states applying “consumer protection” laws to actions by out‐of‐state institutions that are beyond the protections of their fraud, abuse and misrepresentation statutes which are already preserved under SARA; and

WHEREAS, states could potentially apply varying “consumer protection” laws specific to higher education and the delivery of distance education, which would mean going back to fifty plus separate sets of state regulations with which institutions would be forced to comply; and

WHEREAS, such potential circumstances could de facto undermine and nullify the benefits for students, institutions, and states that have been realized under interstate reciprocity of distance education authorization.

NOW, THEREFORE BE IT RESOLVED that The Council of State Governments requests that new rules on distance education being promulgated by the U.S. Department of Higher Education on consumer protection be clarified to read that an acceptable reciprocity agreement “does not prohibit a participating state from applying its own consumer protection laws as to fraud, misrepresentation, and abuse.”; and

BE IT FURTHER RESOLVED that this resolution be sent to the U.S. Secretary of Education John King, Under Secretary Ted Mitchell, and MHEC member states’ governors and congressional delegations.

Adopted by The Council of State Governments’ Executive Committee this 11th Day of December, 2016 in Colonial Williamsburg, Virginia.