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Settled for now: ED publishes final state
authorization rules
November 6, 2019
On November 1, the U.S. Department of Education (ED) publ ished a final rule that addresses
topics related to two prongs of the regulatory triad: accreditation and state authorization. In this
alert, we address certain aspects of the federal state authorization rules applicable to virtually all
instituti ons of higher education.
Last Friday's final rule is the latest step in a long process that began in 2010 , when ED
promulgated new 34Code of Federal Regulations § 600.9 to clarify the state authorization
requirements institutions must satisfy to maintain Title IV eligibility, including entirely new rules
related to distance education. After a series of court challenges and negotiated rule-making
sessions, ED promulgated rev ised provisions late in 2016, including extensive new consumer
disclosure requirements. Under the Trump administration, the 201 6 state authorization rules
were delayed until July 1, 2020, while ED conducted yet another negotiated rule-making, this
time resulting in a consensus rule. But in National Education Association v. Devos , 379
F.Supp.3d 1001 (N.D. Cal. 2019), a federal court ordered the 2016 rules to go back into effec t,
causing considerable confusion with respect to California, as we reported in a prior alert.
The 2019 final rule appears to bring an end to this period of great uncertainty . While the 2016
rules are still technically in effec t until July 1, 2020, Secretary DeVos – as expected – exercised
her authority to permit early implementation of the 201 9 rules, effe ctive immediately and at the
discretion of each institution.
The 2019 final rule does not significantly differ from the proposed rule achiev ed through
consensus earlier this year. However, the 2019 final rule notably includes the following changes
related to state authorization:
Clarifies the 2016 rules' definition of a "state authorization reciprocity agreement," which left
unclear to what extent states can supplement their own state authorization requirements on
top of standards agreed to in state authorization reciprocity agreements. The new language
confirms that institutions with recipro city agreements are considered authorized subject to
additional state requirements not relating to authorization of distance education.
While the negotiators were unable to reach consensus on a new definition of "state
authorization reciprocity agreement," a technical correction by ED was arguably justified to
avoid undercutting the State Authorization Reciprocity Agreements (SARA) regime, or even a
subsequent determination that SARA membership was insufficient for Title IV eligibility
