Settled for now: ED publishes final state authorization rules

On 1 November the U.S. Department of Education (ED) published 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 institutions of higher education.

Last Friday's final rule is the latest step in a long process that began in 2010, when ED promulgated new 34 Code 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 revised provisions late in 2016, including extensive new consumer disclosure requirements. Under the Trump administration, the 2016 state authorization rules were delayed until 1 July 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 effect, causing considerable confusion with respect to California, as we reported in a prior alert.

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