State Authorization

June 23, 2015


Greg Jones


 Good afternoon list servers,

 In immediate response to the Department's publication last Friday (June 19, 2015) of new guidance in relations to the July 1, 2015 effective date of implementation of the State Authorization regulations (CFR CFR Section 600.9), Tom Netting public policy advisor for AACS immediately reached out to the two national State Authorization contacts your AACS GRC has been working with since 2012 to seek additional direction and clarification on a number of questions resulting from the latest Dear Colleague Letter (GEN-15-10)  and State Authorization Q&A (attached).

 While the Department continues to work with AACS and States toward compliance with the regulations, it is highly frustrating that with two weeks remaining till the effective date of implementation, the Department has yet to publish an official listing of the States, institutions, and/or academic disciplines which are compliant with the regulations – and as importantly, which States, institutions, and/or academic disciplines still have work to be done.  This lack of official guidance from the Department, even as your GRC continues to work vigilantly towards confirmation of compliance within the beauty and wellness professions, gave rise to the decision last week to place the State Authorization portion of the GRC website "Under Construction" – a status which we have decided must remain until we gain answers to existing, as well as a new set of questions, regarding implementation of the State Authorization regulations.

 To that end, on behalf of the AACS students and membership, the primary, initial questions AACS posed last Friday included:


A.  Are institutions required to notify their students of the regulations and the potential impact that may arise as a result of the reviews to be conducted during the normal course of business?

B.  If so, what guidance does the Department have on what they should be telling the students?

C.  When the Department undertakes the review of the status of an institution after July 1, 2015, what is the risk exposure for the institution of the Federal Student Financial Assistance provided from the period of July 1, 2015 to the time that the assessment is made?  Put more directly, IS THERE A RISK OF LIABILITY ON THE INSTITUTIONS FOR CONTINUING TO PROVIDE FSA TO STUDENTS WHILE CONFIRMATION OR RESOLUTION OF NON-COMPLIANCE THE A STATE ENTITY IS DETERMINED?

 2.             A.  Does "ordinary course of business" also include the Transitional GE Certification process – which based upon the recent EA#54 certainly appear to tie the two together?

        Under the regulations at 34 CFR 668.414, each institution must certify that each Title IV-eligible GE program that it offers:

 1.  Is approved by a recognized accrediting agency or is otherwise included in the institution’s accreditation by its recognized accrediting agency or, if the institution is a public postsecondary vocational institution, is approved by a State agency recognized to approve such programs in lieu of accreditation;

 2.  Is programmatically accredited if such accreditation is required by a Federal governmental entity or by a governmental entity in the State in which the institution is located or in which the institution is otherwise required to obtain State approval under 34 CFR 600.9; and

 3.  In the State in which the institution is located or in which the institution is otherwise required to obtain State approval under 34 CFR 600.9, satisfies the applicable educational prerequisites for professional licensure or certification requirements in that State so that a student who completes the program and seeks employment in that State qualifies to take any licensure or certification examination that is needed for the student to practice or find employment in an occupation that the program prepares students to enter.

 B.  Does this suggest that those institutions which have one or more GE programs will be some of the first to go through the confirmation process?

 C.  Has the Department contemplated the linkage between these two regulatory requirements and the effect that this will have on essentially driving review of all for-profit institutions within the next six months – if not sooner as institutions respond to the required review of their ECAR, the programs, and/or changes and the new  Certifications?

 2.  How will various references to the forms of ordinary course of business be applied to institutions that have already gone through recertification or are applying for initial certification, but have either been place on month to month eligibility or not approved respectively?

 3.  What should institutions located in States where agencies are still putting in place a sufficient State authorization process be doing to help ensure that the "may have their current status continued for a reasonable period" is applicable to them? 

 In response to Tom's email, Steve Finley, Office of General Counsel with the Department thanked Tom for the questions, adding:

 "(The question) need to be reviewed and discussed before any detailed responses might be provided.  In general, the kinds of questions you raise will be dependent upon the specific facts and school’s status within each state.  The DCL and related documents released today are the most detailed guidance currently available.

 In return Tom thanked Steve for his quick response to the request for additional guidance and requested a follow up meeting or call to continue to pursue our collective requests for a definitive list of approved states and specific academic disciplines within those states,  answers to the primary threshold eligibility questions, and the broader list of questions related to implementation of this new regulation.

 The AACS GRC will continue to provide you with the very latest on this, and other key regulations going forward and remind you of the next in the series of GE 2.0 Webinars scheduled for July 1, 2015 @ 2PM.

 As you know, we’ve been waiting a State Authorization regulation to be implemented for 5 years.  At this point, and on the cusp of the bewitching hour, we still have more questions than answers.  With that being said, one of the GRC’s primary directives is to inform you what we know and when we know it.  Therefore, we are duty bound to inform you of what we do not know and what we cannot control particularly on the eve of this deadline.  Personally, I wish the Department would once again consider another one year extension as it appears to me that this regulation is still premature.

 Very truly yours,


 Gregory H. Jones, Chairman

Government Relations Committee



State Authorization Questions and Answers:  June 19, 2015


Q:  What is state authorization?

A:  State authorization is a longstanding requirement in the Higher Education Act that requires institutions to be authorized in the state in which they are located as a condition for eligibility to receive Title IV Federal student aid.  In 2010, the Department clarified the role and minimum expectations of States in approving an institution and monitoring complaints from the public about its operations.  As part of its October 2010 negotiated rulemaking "package" of program integrity regulations to better protect students and taxpayers, the Department made state authorization a meaningful requirement to improve State oversight of institutional quality, fraud and abusive practices.[1] 


Q:  What does the regulation require?

A:  The regulation and guidance can be found here.  They require, first, that an institution is authorized, by name, to provide postsecondary education in the State. The final regulations provide significant flexibility to States and clarify that an institution may be authorized based on different methods, such as through State charters, State laws, State constitutional provisions, licenses, or articles of incorporation that authorize an entity to offer educational programs beyond secondary education in the State.  If a State has an additional approval or licensure requirement, the institution must comply with those requirements.  Second, institutions are also required to identify the State’s student complaint process to their students. States also have a number of options available to fulfill that requirement. 


Q:  What are the chances of the Department granting an additional extension?

A:  No further across- the- board extensions will be provided for this regulation, which was originally published to go into effect on July 1, 2011.  As the June 19 Dear Colleague Letter (DCL) describes, institutions will be reviewed for compliance with the state authorization regulation on a case-by-case basis during the normal course of business.

Q:  How will this regulation be implemented?

A:  As the June 19 DCL describes, institutions that have obtained sufficient State authorization during the periods when the extensions were in place will have that status confirmed when they are reviewed by Department staff in the ordinary course of business.  Institutions located in States where agencies are still putting in place a sufficient State authorization process may have their current status continued for a reasonable period to permit a State process to become final.  Institutions whose State authorizing agency has a sufficient process but declines to authorize the institution will have their status resolved when they are reviewed by Department staff in the ordinary course of business. 

Q:  Will there be another delay?  If so, why doesn’t the Department rescind the regulation or find another penalty to enforce it?
A:  Many States have reviewed their authorization process to ensure institutions have access to an acceptable state authorization process, and the Department will have a case by case oversight for this requirement going forward.

Q:  Wasn’t a provision of the regulation overturned by a court?  Does this mean ED doesn’t have the authority to enforce the rest of the regulation?

A:  The court invalidated a State authorization provision that dealt with distance education.  The remainder of the State authorization requirements, that institutions must obtain State authorization where those institutions have a physical location, was not affected by the court ruling.

Q:  Why should an institution be punished if the state doesn’t have the proper authorization procedures/processes?  Shouldn’t ED have been aware?
A:  Institutions have always had to meet certain minimum state requirements in order to participate in the Federal student aid programs, and these regulations established more detailed requirements to protect students better.  States that are not upholding their responsibilities for oversight under the Higher Education Act put both students and taxpayers at risk.  The Department has provided ample time – over four years – for states and institutions to comply with this regulation.

Q:  Why can’t ED update institutions on their individual status?
A:  The Department monitors an institution’s status during the ordinary course of business through the institutional recertification process, through applications to add new programs or locations, in response to outreach from students or other agencies, or through the resolution of audits and program reviews.  In this manner, the State authorization for a participating institution will routinely be monitored on an ongoing basis and the Department will work with institutions under review to ensure that they are aware of their status. Schools should work with their authorizing agencies to make sure they are up to date with the agency’s requirements.

Q:  Why can’t I find out the status of my state from the Department?

A:  State arrangements have been changing frequently as the effective date approaches.  We encourage institutions to reach out to their State authorizing agency and FSA to ensure that they are in compliance with the regulation.


Q: Is there something I need to do prior to my re-certification?  Will this be due July 2015 or at the time of recertification?
A:  Satisfaction of the State authorization requirements will be reviewed on a case-by-case basis when each institution comes up for recertification or another review action.  Institutions in States where the State authorization process is changing should ensure that they have any relevant documents available to provide upon request to the Department.

Q:  My institution may have difficulty meeting this deadline.  What should we do?
A:  As described in the June 19 DCL, institutions will be reviewed for compliance to the State authorization regulation during the course of normal business.  Institutions should work with their State authorizing agency and FSA to ensure they are meeting all requirements.


Q:  My state may have difficulty meeting this deadline.  What should we do?
A:  States without an acceptable complaint system and State agencies lacking a compliant authorization process put every institution they oversee in jeopardy of losing Title IV aid eligibility.  The Department has worked and will continue to work with States and their agencies to prepare them for the July 1, 2015 implementation date.  To discuss your State’s plan for meeting the regulatory requirements, please contact Sophia McArdle at (202) 219-7078 or by e-mail at   

Q:  Will the Department be providing TA?

A:  The Department has previously provided guidance on the State authorization requirements here


  • State officials and agencies: If you believe some institutions in your State may have difficulty complying with these requirements, or to discuss your State plan for meeting the regulatory requirements, please contact Sophia McArdle at (202) 219-7078 or by e-mail at
  • Postsecondary institutions:  Please contact your State authorizing agency to ensure you have the necessary process in place to meet these requirements.  If you have questions, please contact your School Participation Division at the contact numbers on the following link:


Q:  Has ED provided guidance on the regulations?
A:  Yes, the Department has previously provided guidance on the State authorization requirements here.

[1] The oversight role of States is expressly contemplated in the Higher Education Act (HEA), which requires each state to:  (1) provide the Secretary, upon request, information with respect to its process for authorizing institutions to operate within the state; (2) notify the Secretary promptly whenever the state revokes a license or other authority to operate an institution; and (3) notify the Secretary promptly whenever the state has credible evidence that an institution has committed fraud in the administration of title IV student aid programs, or has substantially violated a HEA provision.

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