Hi everyone!

It’s been an interesting couple of months regulatory wise and I had really hoped or thought that it might not veer in to the state authorization space and then.... *sigh* we will not be so lucky....

I don’t know how many of you heard about or read the Dear Colleague Letter from the Dept. Of Education in February about Third‐Party Serivcers, but it was a doozy and has been occupying a lot of folks headspace when it comes to the recruitment and delivery for/of Title IV applicable programs. Essentially the ED put out some subregulatory guidance that increased the scope of what is considered a 3rd Party (i.e. not the institution) and then to add insult to injury asked everyone EVERYONE to report all of their new relationships by 9/1. <insert screaming here>. And oh btw, said the ED, you’re not allowed to contract with foreign entities for these contracts and OH if there’s a data breach the fault lies with the institution not the 3rd Party <screaming intensifies>

The ED graciously gave everyone ~30days to respond and the higher ed community took advantage of that submitting some 1000+ comments about how poorly planned this guidance was, how catastrophic this would be for MANY institutions and how this will not get to the root of the problem (that being the misuse of federal funds and the misleading marketing to potential students and the student loan explosions).

You can read more on this at the Chronicle or WCET. You can read the Dear Colleague Letter here.

You don’t need to do anything at the moment, in fact most of us are sitting patiently waiting to see what the ED decides to do ‐ maybe repeal or revise the guidance... there’s a lawsuit by 2U (which....they’re in a heap of problems stemming from their actions as an OPM so this could just be a “SQUIRREL” kind of move on their part) and there’s an enormous scream coming from the study aboard sector as well as industry like D2L (who is located outside of Toronto).

And I was more than content to set this aside for a month and do other work. But then the TPS issue popped up in the state authorization realm. Some of us and our colleagues across the country contract with these 3rd Parties to assist us in performing tasks or actions on behalf of our institutions (think recruiting or advising for example). Some states require institutions that physically perform those actions in their states to receive approval for having a physical presence. Since these 3rd Parties may be performing these actions in our names, or under our banners, if the 3rd Party is located in one of those states the states require the INSTITUTION to request approval for maintaining a physical presence. What does that mean? If CU Boulder has contracted with a 3rd Party to recruit our students and that 3rd Party is incorporated in a state that has a physical presence regulation tat includes recruitment, CU Boulder will need to contact that state and go through the same process we would if we were setting up a physical location to deliver a degree there (additional location). Failure to do so could result in the institution being “expelled”from recruiting or delivering in education in that state (even online).

What does this mean for us ‐ For right now, while we let the folks on the emerald level duke it out, connect with the folks on your campus who are working on the TPS issues and help them understand the potential need for physical presence permissions. Then start to gather information about who these companies are, the actions that they are performing on behalf of or under the name of your campus, and where they are located and begin researching the state requirements around physical presence. You may find that you have to do nothing (some states don’t pay any attention to things like this, like VT), but you may find that you need to go through a process to get a “location” approved.

Fun Fact: CO is a state where other institutions would need to seek this type of approval.

In other news ‐ last month I had the opportunity to attend the HLC Annual Conference ‐ one of my favorite conferences (I’m biased lol). There was a session by the state authorization lead from Grand Canyon University and the AZ State Portal Entity on professional licensure disclosures. It was interesting in that other than myself and the presenters, there was NO ONE in the room that works in state authorization or SARA compliance as part of their regular job. The other part was how complicated GCU has made their process to maintain (and they had to contract with a TPS to do) but also how AZ REQUIRES institutions that use the “unable to determine” option to have evidence that a “reasonable effort” was performed before using that option. if you’ve been following any of the gripes and concerns with the SARA policy language in 5.2 is all focused on that phrase. What does “all reasonable effort” mean and how is that applied?

While there are several proposals in front of NC‐SARA right now to remove that phrase from the policy, this is something we should keep an eye on especially with state authorization coming up for discussion at the next Negotiated Rulemaking session (est. Nov. 2023) as well as the NC‐SARA policy proposals by folks at the New Century Foundation that were meant to strengthen the responsibilities of the states in SARA when it some to institutional reviews and general purpose laws.

What does this mean for us ‐ For right now, take stock of where and how you used the “unable to determine” choice for your professional licensure programs. How have your documented that? What evidence would you have if called on to defend your choice?

Have a great weekend everyone, and as always if you have any questions do not hesitate to reach out!

Sincerely,
Erika

Erika G. Swain
Associate Director for State Authorization
Office of Academic Affairs
University of Colorado System
e: swaine@cu.edu
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Assistant Director for Compliance and Authorization
Office of Data Analytics | Office of Institutional Research
University of Colorado Boulder
e: Erika.Swain@colorado.edu
o: (303) 735‐8184
c: (518) 637‐9785