Mitchell Clarifies ‘Reciprocity’ Definition in State Authorization Regs

By Brittany Hackett, Communications Staff

During the final days of his term, Undersecretary of Education Ted Mitchell clarified the definition of “state authorization reciprocity agreement” published late last year as part of final state authorization regulations concerning distance education.

The final rule allows the state authorization component of institutional eligibility to be satisfied by a reciprocity agreement between states where an institution physically located in one state offers distance education to students who reside in the other state, provided the agreement meets the conditions in the definition. The definition does not recognize agreements that prohibit a state “from enforcing its own statutes and regulations, whether general or specifically directed at all or a subgroup of educational institutions.” This aspect of the definition had raised concerns that current reciprocity agreements would be invalidated.

In a January 18 letter sent to National Council for State Authorization Reciprocity Agreements (NC-SARA) Executive Director Marshall Hill and WICHE Cooperative for Educational Technologies (WCET) Policy & Analysis Director Russell Poulin, Mitchell confirms that state reciprocity agreements “are a satisfactory means to obtain authorization” for distance education programs.

ED’s definition establishes several minimum requirements. However, Mitchell points out that there is no requirement that states be accepted into the agreement if they have laws that are in conflict with the agreement’s terms and conditions. Nor is there any requirement for states to enter into a reciprocity agreement.

“In other words,” Mitchell writes in the letter, “a distance education reciprocity agreement may require a State to meet the requirements and terms of that agreement in order for the State to participate in the agreement.”

In cases where there is conflict between a state’s laws or regulations and a distance education reciprocity agreement, ED expects the issue to be resolved by the states and the agreement as the Department “is in no position to adjudicate disputes between State entities,” Mitchell writes. Any conflict must be resolved before participation in the agreement satisfies ED’s state authorization criterion. Such a conflict would be resolved by the state amending its rules appropriately.

The letter was written in response to a request for clarification made by Hill and Poulin on January 10. Implementation of the state authorization regulations has been delayed until July 2018 after ED failed to submit the final rules before the November 1, 2016, deadline. Whether the regulation will survive the U.S. Congress or the new Administration is unknown, but for the time being schools should plan on the current regulatory implementation date of July 1, 2018.


Publication Date: 1/25/2017

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