Navigating State Authorization Amidst Emerging Reciprocity Webinar Q & A April 16, 2014 State Authorization (answered by Marianne Boeke, Misty Bush, Danielle Buckius, and Sharmila Basu Mann) NOTE: We were asked to make a clarification by one of the attendees. Apparently we made it sound like you have to obtain authorization in all 54 states and territories, but this is inaccurate. If we made it sound like this, we apologize. An institution only needs to contemplate authorization in states where its activities trigger the need for authorization. What every institution needs to do is have complete, accurate, and up to date information on all its activities in all the states and then check with each state where there is any activity to find out if those activities are not regulated, exempted from regulation, or require some level of certification or authorization. Some states regulate almost no activities while those at the other end of the spectrum regulate all activities at a finely grained level. Q1: I have a question about Continuing Education at my institution. They think because they don't offer credit courses, or financial aid, that they are exempt from state authorization of their online programs and certificates. I feel they should they need to be under the same authorization as the credited campus courses. A1: If an entity is doing business in another state, they need to be concerned about state authorization (and potentially about getting licensed as a business in that state). Therefore, if your school is accepting money from students in other states for an online Continuing Ed course (even if it s noncredit and fin aid is not involved), then you can count on many of those states expecting you to be authorized to do business there. This is why it s important to check every state s regulations, as each state may treat this case differently. Q2: In regard to applications and renewals, is it known which states require a 3rd Party CPA letter to confirm financials? A2: Not off the top of my head. This is the sort of information that you can find in the SHEEO state agency surveys and by checking with each state s authorizing agency. I am unaware of a list, but this is the type of summary and resourced the folks at SHEEO and MHEC are always trying to produce. 1
Q3: So if we do have a student in a state in which we do not have authorization and we make a decision not to target that state, what do we do with the current student? A3: If your institution makes a decision to no longer offer education in a state, then you would go through the steps to teach out the student (similar to steps your institution may have taken in the past when deciding to no longer offer specific degree programs). A communication is made with the student, informing them of the teach out, and they are given options for completing their studies in a certain amount of time. Sometimes, an institution will ask a student to sign a document wherein they state they will be finished with their program in XX amount of academic terms. Q4: To verify a student attending our institution on a sports scholarship is currently residing in our state, we would not need authorization within their home state? A4: If an out of state student is residing in your institution s home state to take courses at the institution, the student is seen as a home state resident for the purposes of state authorization. Q5: What size staff does Franklin have to do all that Danielle is explaining? A5: It depends. We work on a variety of projects in Accreditation & Institutional Effectiveness. One employee is 100% dedicated to state authorization maintenance. One additional employee is responsible for a handful of states, but works primarily on other accreditation projects. So, we currently have about 1.25 employees dedicated to state authorization. Q6: When are institutions collecting student residence information, start of term, midterm, end of term, etc.? A6: This is up to the institution. Choose a date and stick with it; consider it your annual census date. We use our Fall BED date (Budgeted Enrollment Date). At other institutions, they use the 10 th day of classes, etc. Q7: If you have a student on campus from out of state and takes online courses, does the institution need to register in the student's home state? A7: The institution needs to register in the state where the student is taking the courses. 2
Q8: How will a university know if it can assure students that successful completion of a program and successful passage of content area tests will result in licensure? A8: It is essential to check with the specific licensure departments in each state, i.e., nursing and education offices. It will also be necessary to verify with the state approving agency as well. Under SARA, all participating institutions will have to verify and document that they have taken this step and that the program in question either a) does meet all the licensing requirements in the other state or that b) they were unable to confirm that the program meets licensing requirements and that the student needs to conduct this research her/himself. Q9: Can a district seek authorization on behalf of its 7 college locations, or is it a separate fee per college? A9: Some states allow districts or systems to apply as such, and some even allow one set of fees per type of program (MN comes to mind). Many state agencies will allow you to register as a system but then will require different institutional or program fees. Finally, there are states where each institution must register independently and pay fees accordingly. Under SARA, a group of institutions that truly do run their distance education programs from one consortia or system office can possibly apply to their state (it will depend on the state) as a group, but all the institutions with separate OPE ID numbers will need to pay individual institutional fees to NC SARA. Q10: Are hybrid programs with classroom components at our home location required to be authorized for the online component? A10: Generally, any online offerings need to have the correct authorizations. There are some state agencies which only authorize by program, and it depends on how much of the program is actually offered online (25%, 50%, etc.) whether that agency regulates it or not. Q11: Link to sign up for the SHEEO State Authorization Listserv? A11: There is no link for signup; please just write to Sharmila Mann at sharmila@sheeo.org with your request, and we will add you to our list. 3
Q12: How common are cease and desist letters coming from states? Are there any states that are more likely to issue those rather than letting enrollments continue while application is pending? A12: It is not uncommon to receive a cease and desist letter, particularly if the agency contacted the institution and the institution ignored that call. The cease and desist letter is more to get the attention of the institution. Remember, the agency wants the institution to be in compliance so their goal is to work with the institution. If an application is pending then I would be very surprised if an institution received a cease and desist letter. Regardless of the likelihood for cease and desist orders from the state agencies, it is critical to understand that it is, and has always been, STATE LAW that institutions abide by whatever authorization requirements are pertinent/applicable to that state. It is also good to remember that state agencies are usually very willing to work with institutions that are clearly making good faith efforts to become authorized. I would highly encourage you to specifically contact the state agencies in any state where you are enrolling students to ensure that you are following the appropriate process for that state and agency. You can find a list of contacts for all of the state agencies on the SHEEO State Authorization web site at http://www.sheeo.org/node/434. Q13: Do you have a list of states requiring authorization or exemption for non credit or continuing education courses? A13: First of all, it s important to remember that requirements vary by agency, not by state. States often have multiple authorizing agencies, each with very different rules and regulations for institutional authorization, as well as different ranges of institutions they authorize. We do not, at this time, have the list you are requesting; however, in question 2 of the SHEEO survey (http://www.sheeo.org/node/434), we ask each agency to indicate the institutions that fall within their range of authority. Those agencies that have marked one of the four non degree institutions option(s) for that question would be the likely suspects for populating your list. In the future, SHEEO expects to be able to generate reports such as this on request, as we are moving to an online database for storage and presentation of the survey data. We are currently in the middle of the data upload process, and expect it to be fully completed by the end of May. Q14: Our institution has a research facility in another state (at least one state maybe more). This isn't an administrative office but it's definitely a bricks and mortar building. It's possible a grad student could end up there for a semester. Do you know of any states where this would be considered physical presence? A14: Absolutely. Many state agencies consider any physical building within their state that is part of your institution to constitute physical presence, regardless of whether any students are receiving instruction there. Therefore, the fact that you have a research facility associated with your institution in another state is likely already triggering physical presence for your institution in that state. In addition, there are a great many state agencies that consider the presence of a student associated with your institution receiving instruction in person at any location in the state (whether or not it is a facility that is 4
controlled by your institution) to constitute physical presence. These requirements vary widely across states and agencies. The best way to determine if the states in which you have research facilities consider that a physical presence is to first check the surveys on the SHEEO website (http://www.sheeo.org/node/434), then to directly contact the specified contact person for that state agency if you have any questions. On the survey, the question that deals most specifically with the physical presence issue is question 5. Q15: We have students from Maryland who are here taking on campus classes, but we got the letter, and they are also taking online classes. However, they aren't completing a program online so we are okay, correct? A15: It depends. If the student is from Maryland and is a residential student in your state and is taking online courses from their dorm or their off campus (but still in your state) apartment then you are fine. If, however, that Maryland residential student went home for the summer or the term and took online course(s) that included practica or internships then you might need to be registered it would be worth contacting Maryland and asking about that second scenario. Q16: What about the f2f resident campus students that might go home to Maryland or another state to complete an on the ground activity? A16: It is best to check with the specific state agency in question. In general, most state agencies do not consider short term on the ground activities of residential students (unless the activity is a clinical residency or internship) to trigger physical presence. However, there are always exceptions. My advice would be to contact the state agency for the state in which you think this might be happening, and ask whether your specific instance constitutes physical presence. You might begin by looking at that agency s response to question 5 on the SHEEO survey, which deals with many aspects of physical presence. If you are still unsure, please contact the agency representative listed on the survey. All agency surveys can be found on the SHEEO website at http://www.sheeo.org/node/434. Q17: Our institution received such a letter, but they asked if we provided "fully online programs" and we were confused about what that means? A17: My understanding is that if an institution is not offering fully online programs and the institution is not triggering the need to be authorized by any other method (e.g., an internship or practica see SHEEO survey for the list) then you are fine. 5
Q18: What if you have a Maryland resident who moves to another state and enrolls in that new state's online program? A18: This is a complicated one; let me try to walk through the scenario and various possibilities. If you are an institution offering instruction to a Maryland resident, you should already be authorized to operate in Maryland. If that student then moves to another state, say New York, and enrolls in a New York institution, there are two things going on here. On the one hand, you have no responsibility for the student s work in the New York institution. On the other hand, however, if you do not know where the student lives, and he/she is still enrolled in your institution, then you need to continue to be authorized in Maryland to offer instruction to that student until you know otherwise. One of the most important parts of a good faith effort to authorize is to make sure you have accurate and up to date information from many sources within your institution. Enrollment and residence data should be flowing to you from, I imagine, the registrar s office on a regular basis. At least once a semester, I would say. Q19: Just to clarify, the July 1, 2014 deadline applies to state agencies and NOT individual institutions? A19: Yes. Q20: With proctoring, if we require proctoring but do not provide the proctor, is that presence? A20: In some cases, yes. Please check with the specific state agency. You might begin by looking at that agency s response to question 5 on the SHEEO survey, which deals with many aspects of physical presence. If you are still unsure, please contact the agency representative listed on the survey. All agency surveys can be found on the SHEEO website at http://www.sheeo.org/node/434. Q21: Do you have any resources dedicated to medical schools with students in clinical rotations out of state? Our institution doesn't offer any online education, but we still have to go thru this process. A21: We do not know of any public resource dedicated to information on medical schools with students in clinical rotations out of state. I think it would depend on how the rotation is categorized if it is an internship/clinical needed to graduate I would think that would justify state authorization in many states. 6
Q22: If traditional programs market in other states does this trigger physical presence for the online programs? A22: In this case, the physical presence trigger may have nothing to do with the online programs. Several state agencies consider institutional marketing to be a physical presence trigger, particularly if the marketing has been targeted to that state s residents, or is distributed through local media sources. So yes, marketing in a state may well trigger physical presence, regardless of whether your institution is offering online courses or programs to students in that state. Please check with the specific state agency. You might begin by looking at that agency s response to question 5 on the SHEEO survey, which deals with many aspects of physical presence. If you are still unsure, please contact the agency representative listed on the survey. All agency surveys can be found on the SHEEO website at http://www.sheeo.org/node/434. Under SARA, many more marketing activities become acceptable, whether they pertain to distance or on the ground programs, as there is usually no way to disentangle marketing activities of the one from those of the other. Q23: What about hybrid programs? For example, master's programs that have 50% on line courses and 50% on campus work; or 75% online, 25% on campus? Some programs have students fly in for, say, a weekend on campus but then the rest of the semester is on line. Do these still need authorization? A23: It is best to check with the specific state agency in question. The campus portions are not the problem; the online portions are. Many agencies require institutions to be authorized to operate in the state if they are offering any instruction to students residing in the state. If this is the case for a particular agency, it will not matter whether the student is 50%, 75%, or 99% online any on line instruction to any student in the state, if they complete that instruction while residing in the state, will constitute physical presence. On the other hand, if the student in question is a residential (on campus) student for a particular institution, who is also taking on line courses while living in the state of the institution, this will likely NOT trigger physical presence. Like most physical presence triggers, this varies immensely across states. My advice would be to specifically contact the state agency involved. You might begin by looking at that agency s response to question 5 on the SHEEO survey, which deals with many aspects of physical presence. If you are still unsure, please contact the agency representative listed on the survey. All agency surveys can be found on the SHEEO website at http://www.sheeo.org/node/434. Q24: Students enrolled in our on line and off campus degree programs often also obtain prior learning credit from us for learning acquired through work, training, and/or life experiences. Do any states regulate prior learning credits differently than credits earned through coursework? A24: I don t believe any state agencies currently consider prior learning assessments (by themselves) to constitute physical presence or require authorization. However, if you are offering on line or off campus degree programs to students outside of your state, then you will likely need to be authorized to provide those programs to those students in those states, and I d encourage you to check with the appropriate 7
state agencies. I don t believe that prior learning assessments add to this burden. Also, in some states, authorization can only occur after an in depth program review. It is possible that credit issued for prior learning at your institution might complicate the process by which another state seeks to authorize your programs. Q25: Any penalties levied yet against a college for not having an exemption or authorization? A25: In terms of penalties, I am assuming you mean monetary damages. Yes, there have been several universities that have settled with students for an undisclosed amount for failing to be authorized in a state that required it. In most of these cases it involved professional licensure. Q26: What are the implications of saying on your web site that you cannot accept students from certain states? A26: You are fulfilling a consumer protection role by identifying clearly on your website, in areas that will be easily accessed by potential students, that you are not authorized to offer instruction to students from certain states. This provides you with some protection in case a student from one of those states does manage to enroll, despite your best efforts. However, if you are serious about not enrolling students from certain states because you know you do not have, and are not planning to seek, authorization from the agencies in those states, providing information on your website is only the minimal amount that you can do. It would likely be good practice for you to institute some other types of controls on your enrollment process. For instance, if you accept online applications, then you might ask the student to certify that to the best of their knowledge they are not residents of states (x, y, and z). If you have admissions counselors working for your institution, you may wish to ensure that they know to inform potential students EARLY about which states you cannot serve. Putting several of these checks in place helps to ensure that you are following state law, and thereby protecting yourself from lawsuits from students claiming that they were enrolled without proper notification. SARA (Answered by Alan Contreras, Emily Jacobson, and Jenny Parks) Q1: How will the "portal institutes" be defined? A1: This is defined in the SARA Policies and Procedures document on page 2. Portal Agency means: the single agency designated by each SARA member state to serve as the interstate point of contact for SARA questions, complaints and other communications. Different groups of higher education and political leaders in each state convene and decide which existing or new entity would be the optimal agency to become the SARA portal in each state. In some states there is an existing office or commission of higher education that is a natural one to take on this role, while in other states a Board of Regents or regulatory agency 8
can take on the role with changes to laws and regulations. Finally, in some states, a new council or board will be created to become the SARA Portal Agency (SPA). Q2: If internships are considered distance education (which I think is included in SARA), will we need to include in our reporting the number of internship students (from our residential programs) in each state? A2: Currently, the proposed data requirements for NC SARA do not require this reporting, though this might be a data point we would like to collect in the future. For now, the only SARA data to be collected from institutions is the number of students out of state in distance education programs, reported by the number of students per state. By 2016, these numbers will also need to be reported by program. Q3: Will states be able to charge a fee like they do now (besides the one for running SARA in their state) such as Indiana has a $2000.00 min out of state application fee currently will they still be able to have this application fee if we become part of SARA in our state? A3: SARA states will not be able to charge out of state fees to SARA member institutions from other SARA states regarding distance education. Q4: What fees can states charge to institutions when they seek to operate under SARA? A4: This is outlined in the SARA Policies and Procedures document on page 6. States have the option of charging SARA participant institutions in their own state a fee to cover the state s costs for administering SARA. For example, in the two current SARA states, there are no Indiana or North Dakota fees for institutions in those states that join and function under SARA, but those institutions do pay annual fees to NC SARA for their participation in the program. Q5: Are any states openly questioning participation in SARA? Is there adequate interest, or does Congress need to consider creating incentives for states (perhaps via financial aid?) A5: There is very significant interest in SARA. Two states, Indiana and North Dakota, have already joined. In the WICHE region, Alaska, Washington, Idaho, Nevada and Colorado have applied, and their applications are expected to be approved by the WICHE board in May. Several other western states are expected to join by the end of 2014. Several additional Midwest states are expected to join in 2014, too, along with one or two states from New 9
England and one to three from the SREB region. The SREB region will be the slowest to join because most states will require legislative action in early 2015. Right now we expect between 20 and 22 members by the end of 2014 and another 20 or so in 2015. Q6: Will state licensing bureaus be required to review your program and let you know if a graduate will be able to become licensed? A6: This is outlined in the SARA Policies and Procedures document on page 6. SARA has no effect on state professional licensing requirements. Any institution operating under SARA that offers courses or programs potentially leading to professional licensure must keep all students, applicants and potential students who have contacted the institution about the course or program informed as to whether such offerings actually meet state licensing requirements. This must be done in one of two ways: a. The institution may determine whether the course or program meets the requirements for professional licensure in the state where the applicant or student resides and provide that information in writing to the student, or b. The institution may notify the applicant or student in writing that the institution cannot confirm whether the course or program meets requirements for professional licensure in the student s state, provide the student with current contact information for any applicable licensing boards, and advise the student to determine whether the program meets requirements for licensure in the state where the student lives. Failure to provide proper notice in one of these two ways invalidates the SARA eligibility of any course or program offered without the proper notice. Q7: Wisconsin is currently drafting legislation to join M SARA (according to your chart). Are other states needing authorization in WI required to proceed with individual state authorization or can we wait for their state's decision on the legislation? A7: Institutions needing authorization in other states need to proceed with individual state authorization in the meantime. 10
Q8: How are military bases addressed by SARA? A8: This is outlined in the SARA Policies and Procedures document on page 7. All distance education course offerings provided interstate to federal employees and their dependents located on a U.S. military facility or vessel are covered by SARA. If such offerings are open to the general public for enrollment, SARA does not apply and state law where the base is located applies. Q9: Regarding Arkansas, North Carolina and Oklahoma, all 3 are listed as N/A Legislation Not Needed on the NC SARA State Status website. Can you explain what that means and what their status is currently with regard to implementing SARA? A9: It means that joining SARA can be done via administrative rule or by action of agency leadership, once the supporting structures are in place and decisions about fees have been made. North Carolina and Oklahoma are working toward SARA membership. I have no information about Arkansas. Ask Mary Larson at SREB. Q10: If most states will be members of SARA by the end of 2015, would it be good to wait for SARA membership, or continue to move forward with individual states and their approval process? A10: Institutions needing authorization should proceed with individual state authorization in the meantime. Q11: If you are a member of SARA in your state, do you still need to move forward with individual authorization in each state, or are you covered under SARA? A11: If you are in a SARA state you are covered in all other SARA states. Institutions needing authorization in non SARA states need to proceed with individual state authorization. Q12: Can states decline to join SARA and continue to require other state institutions to register separately? A12: SARA is voluntary. States can decline to join SARA and continue with their current authorization processes. Likewise, even if your state is a SARA member, your institution is not obligated to operate under SARA if it does not want to. It can continue to work with individual states. 11
Q13: When states decide to join SARA, will they receive a percentage of the fees that individual colleges/universities will pay to participate? A13: This is outlined in the SARA Policies and Procedures document on pages 5 and 6. Fees for an institution to participate in SARA potentially consist of two parts. The first is a required SARA fee paid to the National Council for SARA. States have the option of charging SARA participant institutions a fee to cover the state s costs in administering SARA. Fees paid to SARA by institutions will be used to operate SARA at the four regional compacts and the National Council for SARA. Q14: Is there a distinction being made between low residency programs and 100% online programs? A14: SARA covers certain kinds of distance education and certain short term aspects of onground training for programs that are otherwise based in another state. Most low residency programs will not be affected by SARA. Contact a SARA office for further details. Q15: A student in our residential program returns home to another state to complete an internship will this be covered by SARA, does it need to be? Residential students in a program that has an internship in another state, e.g. working at a National Park, is that covered under SARA, and does it need to be? A15: Right now, if a student at Iowa State University returns home to Minnesota for the summer and takes an online class from ISU, ISU is legally required to obtain licensure from the state of Minnesota. The same would be true of a student placed in an internship for the summer in Minnesota, if it is a part of an academic course or program. This fact pattern is true in many states, especially for clinicals and practica. However, if both states are SARA members, all of these activities are covered by SARA and require no licensure or fees. Q16: Is SARA addressing the GE requirements? A16: No. 12
Q17: Still unclear on the difference between a PhD dissertation research work and a masters practicum? Why would one trigger physical presence and not the other? A17: The distinction is mainly one of supervision. A student conducting independent study on her own, and later including the results of that study in work for a thesis or dissertation, is usually not treated as physical presence by an institution. A student who is placed in a specific professional setting under supervision, when doing that is part of the requirements of a specific course, and when some kind of oversight at the location is reported to the institution, is generally treated as a physical presence for states that regulate practica. Q18: What if a small private college is a member of OCICU http://www.ocicu.org/ and offering courses or obtaining courses from this consortium? Where does this type of consortium fit within SARA? A18: If I am getting your meaning correct, you are asking about schools that share courses and credits among themselves and across state lines via a consortial agreement. Such consortia are still required to abide by state authorization laws and regulations, so SARA would have the same impact upon such institutions that it does on others, namely that if an institution is serving students in another state, that institution has to be authorized/exempted by that state or manage this across state line relationship via SARA. Q19: How does the Department of Ed communicate their feedback about the SARA reciprocity initiative? I've read that USDE has identified what they consider a problem in that the agreement currently designates the institution s home state as the sole arbitrator of all student complaints and USDE also wants the student's home state to hear such complaints. Some of us from larger school organizations get updates on negotiated rule making happenings. Would it be useful to share those with your staff at SARA? Or are there other ways we can help you? A19: We don t think this will be an issue. The Department seems to be backing off its original thinking. Also, a student always has the ability to go to her home state s AG or consumer protection office for assistance in a fraud case or the like. SARA does not preclude that. Also, we have Russ Poulin and Marshall Hill, both of whom are on the current Negotiated Rulemaking Panel, as a consultant and our executive director, respectively, so we get very up to date information on these developments and consider them carefully at SARA. 13
Q20: Will states have authority over all institutions in the state even though the institution is accredited? I have heard that the state of Missouri will now start approving all online degree programs for every institution in the state. Is this true and how will this affect a small private university? A20: Degree granting authority always comes from a government, not an accreditor. All private colleges with degree granting authority have either a state charter or state license. Accrediting associations do not have the ability to give an institution degree granting authority; in fact, federal law requires an institution to have a governmental grant of authority before it can apply for accreditation and Title IV funds. Therefore, the question of accreditation is irrelevant. We do not know whether Missouri will change how it relates to its private providers, but any state that joins SARA automatically assumes some legal authority over what its private providers do in other SARA states. That doesn t change anything about how the private provider operates inside its home state, because SARA only affects interstate offerings by distance ed. The tradeoff is that the private provider, if it chooses to operate under SARA, will not have to get licensed by other SARA member states, and in many states today, it would need a license. Keep in mind that each college gets to decide voluntarily whether or not to operate under SARA. Q21: Are you distinguishing between correspondence and distance or referring to both under the term "distance"? A21: Distance Education is defined in the SARA Policies and Procedures document on page 2. Distance Education means: instruction offered by any means where the student and faculty member are in separate physical locations. It includes, but is not limited to, online, interactive video or correspondence courses or programs. Q22: In States that have joined SARA, current statutes apply as they always have to other states institutions that have not joined SARA. Indiana, for example, has a $2,000.00 minimum fee for out of state institutions that will still apply to them if they are not SARA member institutions coming into Indiana from SARA member states. Is this correct? A22: Correct. SARA states can still charge fees to institutions based in non SARA states for authorization. 14