The State Authorization Network at 15: An Informal History of the Early Days

The State Authorization Network (SAN) was originally envisioned as a vehicle for higher education systems and consortia to help their member institutions. With the U.S. Department of Education deciding to tie distance education financial aid to approval in each state, assistance was eagerly sought.

As it celebrates its 15th birthday, it is fun to think we thought SAN would be a short-term fix needed “until we figured it out.” Like our Grateful Dead friends, we would have had to have had to inhale some magical weed to imagine “what a long, strange trip it’s been.”

Enjoy this brief, sometimes irreverent history of SAN’s origins. 

States always expected institutions to follow their laws and regulations when recruiting, enrolling, teaching, or otherwise serving students within their boundaries. Flashing back to fifteen years ago, the states were mostly pretty clear about what was expected of institutions either headquartered or operating in-person. 

For distance education activities, that clarity varied greatly. Some states had very elaborate approval processes while others did not address the issue at all. Many were somewhere in between. Every state was different.

For-profit institutions with substantial online enrollments were quite aware of the differing regulations across the country. Quite often the regulations differed by sector with for-profit institutions having the strictest regulations. Those institutions sought to maintain their widespread enrollment footprints and usually were in compliance with authorizations where they served students. 

For public and private institutions? To put it kindly, they were usually “not-so-much” in compliance across boundaries. There were exceptions with some institutions with expansive footprints. The Southern Regional Education Board even created a limited version of reciprocity for courses from public and private institutions listed in its course-sharing agreement.

In 2010, the U.S. Department of Education held negotiated rulemaking that included some updates on what it expected of states in terms of conducting an “active review” of institutions and having a complaint processes for students. All of this seemingly focused on authorization of institutions operating within a state. 

On October 29, 2010, I was following online discussions about the release of the final regulations from that rulemaking. Someone highlighted that there was weird, unexpected wording about the need for state authorization approval for distance education programs as well. Even though the issue was not part of the final negotiated discussions, the Department felt that a new regulation needed to be added as a “logical outgrowth” of a question they received about distance education during the public comment.   

As a result, a new paragraph was added to 600.9 that had not been included in the version circulated for comment:

(c) If an institution is offering postsecondary education through distance or correspondence education to students in a State in which it is not physically located or in which it is otherwise subject to State jurisdiction as determined by the State, the institution must meet any State requirements for it to be legally offering postsecondary distance or correspondence education in that State. An institution must be able to document to the Secretary the State’s approval upon request.

In calling the Department, I got to know Fred Sellers, who was their point person on the new language. Institutions were expected to be in full compliance by the following July 1. What Fred did not know was that the bulk of colleges were not in compliance and it was mostly the for-profits who had the necessary approvals. I really enjoyed working with Fred. Once he was aware of the problems, he was quite wonderful in developing delays on enforcement and other accommodations that better fit the realities facing the state offices and institutions. 

In the coming weeks, WCET published a blog post on the regulation, held a room-filling, pop-up session at the WCET Annual Meeting, and hosted Sellers on a webcast in January. Sheryl Thompson, then compliance manager for Capella University, was a tremendous help in sharing her expertise. 

In the October through December time frame, the distance education community was absorbing what they were hearing with a moderate dose of shock and a big swig of denial. The most frequent complaint was it was against the “commerce clause” of the Constitution. My favorite call was with the lawyers at an a big-name northeast institution. They claimed they were not subject to the laws of their own state, that the regulation violated faculty “free speech” rights in the First Amendment, and, by gum, an elite institution above all reproach. Following the Kübler-Ross model of stages of grief, they advanced beyond the comfortable land of denial to the rocky terrain of anger. 

To get a handle on the extent of state regulations for distance education, WCET (Megan Raymond and me), SREB (Bruce Chaloux of the Southern Regional Educational Board), and University of Wyoming staff decided to partner. Over the 2010-11 holiday period, we divided up the state and researched (as best we could) the regulations of all 50 states. In January, we published the results. We relied on the information on websites, feedback gathered from institutions, and conversations with some of the state regulators. It was meant to be a starting point for institutional personnel. 

The guide included a major caveat that this work was the best we could do in a short timeframe. People were mostly appreciative, but we did hear from one upset state regulator who was upset that we quoted exactly what was published on her agency’s website.

The return from holiday break also seemed to allow for the passage from the land of denial.

We learned that some states had extensive processes for distance education authorization that took months or years to navigate. Many had no process at all for out-of-state institutions or (more often) for those in the public and private, non-profit sectors.  

One major finding was that if an institution read the federal regulation on the day it was released and applied to all fifty states on the very next day, they would not be able to meet the July 1, 2011 effective date everywhere. Some states processes take so long that there simply was not enough time to become authorized. This was especially true if hundreds of institutions were to apply at the same time. We were also hearing that state oversight offices were being flooded with calls about their regulations. 

Fred Sellers and the Department of Education were trying to help institutions by acting on the new information. I was part of a small “Drafting Team” with several state regulators organized by Paul Shiffman of Excelsior College working on interstate reciprocity. But, we knew the fruits of that work would be years away. The State Higher Education Executive Officers (SHEEO) organization built on the initial cataloging work and assumed the duty of maintaining a survey of state regulations. The two people who created that new guide for SHEEO were NCHEMS employees Stacey Zis and Marianne Boeke.

All of this was good progress. More help was needed.

In conversations with many from institutions, it was clear they needed more clarity about what was expected of them from the states and the Department of Education. This need became more acute as the Department issued a series of “Dear Colleague” letters that changed the expectations for compliance. Additionally, states started updating regulations that were dated and reflected the technologies of earlier decades. 

The idea of “networking” to help each other was natural to WCET and its members. There were three main benefits of creating such a network:

• Learn directly from the sources. It is useful to hear about compliance expectations directly from those enforcing the regulations. Fred Sellers was wonderful about communicating on behalf of the Department of Education. Similarly, we learned what wonderful people occupied the state regulator roles. They were eager to talk to people from several institutions at once to save them time and get their message out. 
• Learn from each other. The networking among members created an “early warning” system for institutional personnel to learn about changes regulations or compliance processes in a state. It also was helpful for members to share their internal structures for managing compliance and messaging to others on campus about the need to follow the law.
• Advocate our joint position. Together we were able to assemble survey data and anecdotes about the realities of authorization compliance. We could also make recommendations on changes that would best meet the needs of serving students.

The purpose for the State Authorization Network was born, but the details needed some work. Originally, the idea was to use a “train-the-trainer” model focused on systems and consortia of institutions. The “Coordinators” for each member organization could then help their own institutions. It did not take long for institutions to also want to join on their own or create mini-partnerships and we had to adjust.

We also thought that the need for such a network would be temporary. There are lots of questions now, but we could sunset the effort “once we had it all figured out.” Little could we foresee the long-and-winding road ahead of us. States changed their regulations, some states had additional twists such as the need to register with the Secretary of State’s office, the need for separate program approval for programs leading to professional licensure came into focus, the Veterans Administration and Department of Defense tried to keep up with their rules, and the State Authorization Reciprocity Agreement emerged.

Most of all, we could not have predicted the timeline for the Department of Education’s Title IV enforcement of state authorization for interstate distance education to become effective. The original regulation set enforcement for July 1, 2011. Due to lawsuits, changes of administration, interim guidance, and multiple rulemakings, the regulation tying state authorization to Title IV eligibility finally became effective on May 26, 2019. And that was by a somewhat surprising court order that left institutions with one set of regulations effective on May 26 and a different set to become effective only a few weeks later on July 1. 

This is just a brief overview of that trip. SAN was there to help guide you through the whole journey. 

We were all so lucky!

We receive great advice from those in the know. I mentioned Sharyl Thompson who shared her extensive knowledge graciously. Mike Goldstein, then of the Dow Lohnes law firm, gave great legal advice and always had time for a pointed, humorous observation. Ellen Wagner, then WCET Executive Director, and Beth Davis, her business partner, provided great advice on organizational and pricing schemes. Paul Shiffman, Marshall Hill, and all the early reciprocity leadership were great partners. Bruce Chaloux of SREB and I figured out that we were at meetings together almost every month on this issue. The state regulators became great friends and partners. They understood that we were trying to help them do their work by getting institutions into compliance. They helped and shared graciously.

There are two people who we all really need to thank. 

At the start of SAN, I was running it as an add-on to the full-time job I already had. As membership grew, more help was needed. Marianne created great relationships with the regulators when creating the state-by-state authorization guide. She worked for NCHEMS, but they were willing to contract part of her time to SAN to help run it. She knew her stuff and had a fabulous way with members. We also had the crazy idea of simply latching onto the NASASPS annual conference. It was not an official partnership, but she helped wrangle 10 state regulators to share the details of their compliance rules with the attendees of the SAN event. I also recall having to dispatch her to tackle any members of the Lions Club who were trying to steal our lunch, because it was much better than what their group was offering. Marianne set a solid foundation on the student, regulator, and institutional issues around authorization, which prepared her well for her current job. 

Marianne and I were asked to speak at Ohio State University for a regional meeting. For some reason, the flights to Dayton, OH were about half of the price to fly directly to Columbus. We took that option and had a lovely lunch with one Cheryl Dowd, who worked for Sinclair Community College. When the SAN duties outgrew the time Marianne had available, she suggested Cheryl as worthy candidate to be the SAN Director. What a good call! Cheryl took this nascent organization and brought it to maturity. It is a greater resource than ever imagined. Cheryl and her team created great partnerships that serve the members. SAN has a fantastic reputation.

Much credit to all those who contributed over the years. The willing networking created the success as SAN has adapted with the times. 

I am proud to see this crazy little idea become so successful.

-Russ Poulin
CEO
EduPolicy Insights, LLC