Electronic Campus Initiatives

Survey Report of SREB State Regulations as They Apply to Distance Learning

June 1997

Introduction

As part of a broader regional effort to coordinate the efforts of states in the delivery of electronic instruction, the Educational Technology Cooperative of the Southern Regional Education Board (SREB) surveyed its state high education agencies during Fall 1996. This survey followed adoption by Cooperative members of a draft document entitled Principles of Good Practices for Academic Degree and Certificate Programs that are Offered Electronically. The purpose of the survey was to identify state legislation and policy among states in the region which might be encountered in the development of a cooperative distance learning project. These activities were the initial steps in considering the development of an electronic common market.

In September 1996, state higher education executive officers representatives from the 15 member states received a survey instrument prepared by the SREB Educational Technology Cooperative (Appendix 2). The instrument, entitled Survey of SREB State Regulations of Higher Education Distance Learning Programs, asked each state to respond to a series of questions. These questions asked about the states’ regulations concerning out-of-state institutions, rules and procedures pertaining to distance learning offerings by both public and private institutions within their states. Regulatory citations, policy and regulatory documents were requested.

Subsequently, a number of state respondents to the survey were contacted to clarify their answers. At the conclusion of this process in January 1997, all states had provided usable responses to all questions. Results were tabulated and additional analysis of regulatory documents was undertaken during that month. A draft of the survey results was sent to all state representatives in March and additional clarifications of responses were submitted and incorporated into this final report. A summary of all state responses is presented in Table 1. In addition, there is a question-by-question narrative summary of the survey results located at the end of the report.

This report details the results of this survey, provides analysis of the results and presents several issues resulting from the responses to the survey.

Changing Environment

Since 1974, SREB has sponsored a highly successful program among member states to share uncommon or unique programs to enhance educational opportunities in the region. The Academic Common Market (ACM) has served thousands of students at hundreds of institutions throughout the region. The ACM has served as a model that encourages state cooperation, effective resource utilization, and service to the citizens of the southeast. It has fostered a collegial environment of respect among participating states and institutional partners. This environment is the result of effective program coordination by SREB and state coordinators, who are all committed to service without burdensome administrative demands. The ACM program, by any measure, has been a success.

As in the early 1970's when the ACM was established, the SREB and its member states are confronted with new challenges in a rapidly changing educational marketplace. The infusion of technology into the delivery systems of most institutions is no longer a non-traditional or secondary part of higher education. Distance education is now mainstream and part of most states’ higher education plans. Emerging technologies, particularly digital communications, have advanced the development of various delivery methods including the World Wide Web, and are transforming the who, how, where, and when of the availability of higher education services (teaching and learning) and products (degrees and courses). The technologies are becoming more user friendly, less costly and more readily available. State boundaries become less relevant as networks for higher education expand daily. And learners, with an array of new opportunities available to them in convenient formats and without time and space barriers, are looking to take advantage of the ever-increasing supply of higher education.

Amidst this explosion of programming opportunities, states are now being challenged to respond to a growing invasion from institutions and commercial entities delivering educational programs to their citizens. States continue to exert control over educational activities within their boundaries with varying degrees of authority and varying kinds of approaches. The emerging technological delivery systems make oversight a difficult proposition. Still, the states must ensure that higher education services delivered within their states meet minimum standards to protect the consumer of these services. It is a difficult challenge for state approval/licensure bodies.

In this new environment that focuses less on place and more on service, SREB and its member states are looking to establish an arrangement which could foster cooperation, ensure quality, utilize scarce resources more effectively, minimize time-consuming and costly administrative oversight, and continue the regional traditions established by the ACM. In this context SREB’s Educational Technology Cooperative has discussed the concept of an electronic common market.

As a precursor to further discussion of this concept, additional information about the regulatory climate for distance learning activities was needed. A series of questions was posed to create a baseline of information about state regulatory requirements for approval/licensure of distance learning. Questions posed included requests for information about current electronic program and course delivery systems, and whether states regulate distance learning programs and course activities for out-of-state institutions and/or their own public and private institutions.

Once the current regulatory environment was known, these results could be used to address specific questions about developing an electronic common market. Those questions included:

Could such an entity be established, given the existing state regulatory framework?

What constraints or barriers might such an effort have to overcome?

What new issues would member states and SREB need to consider in making an

electronic common market a reality?

Analysis of Survey Results

All the survey questions were significant and potentially helpful in discussing an electronic common market. But, of particular importance to SREB and states were potential legal or regulatory barriers to the development of such an arrangement. In addition, any unique circumstances, requirements, or anomalies in regulations that could jeopardize cooperation among states were sought. Because of this, particular emphasis in interpreting the results was placed on key questions 2, 3, 5, 7, 8 and 10. The remaining questions are summarized after the key questions and the responses of all states to each question are presented in the appendix (Table 1).

Results of Responses to Key Questions:

2. Does your state require authorization/licensure/approval/registration of programs delivered in your state by out-of-state institutions?

Question 2 sought information about each state's regulatory procedures required for programs offered by out-of-state institutions. Of particular importance was whether any state did not have a regulatory requirement, because this would create the possibility for any out-of-state institution to operate in that state. Such a possibility could have permitted an imbalance among the participating states. However, all states require some form of approval or licensure, although the approaches of individual states and the approval agencies vary widely across the region. Still, from a review of the regulatory materials provided by the states, there appears to be a common concern and interest in ensuring at least a minimal level of quality for its citizens pursuing higher education from outside providers. It is noteworthy that a few states have moved to a more "free market" approach to approval or licensure (e.g., Texas and Virginia), focusing more on issues of quality and less on efforts to exclude or to otherwise inhibit such programming. Federal laws concerning restraint of trade and interstate commerce are other potential issues for states. Whether changes have come about because of potential federal involvement, the increased use of technology, or the practical aspects of both tracking down and regulating a growing number of providers is not clear. What is clear is that states are more sensitive to quality and more concerned with ensuring that certain standards are maintained for their citizens.

3. Does your state exempt regionally accredited out-of-state institutions from authorization/licensure/approval/registration procedures?

Question 3 asked about any exemptions from approval or licensure processes for a regionally-accredited institution. While Texas has such a policy, it is restricted to activities that are considered occasional and would not be permitted when a program or a regular series of courses was offered electronically. Further, the Texas approach has other aspects within its rules which define "exempt" and "non-exempt" institutions and requirements for certification of authority to operate in the state which, for practical purposes, does not permit exemption.

The responses to questions 2 and 3 indicated that all states have some form of regulation of educational services offered by out-of-state institutions.

5. Do your state policies and/or codes treat electronically delivered programs from out-of-state institutions differently than those taught on-site in your state?

Question 5 asked about the treatment of electronically delivered programs from out-of-state institutions. It asked if such programs were treated differently in any significant way (i.e., placement of a heavier regulatory burden on such activities). Upon further review of the regulations, the different treatment suggested by the responses from four states was less about the kinds of requirements or demonstration of program quality, than about ensuring that the delivery methods were clearly delineated in policies and that such programs were appropriately reviewed and would fall under state regulation. Such differences, for example, focused on definitions and a determination of the nature of the delivery. The Louisiana approach is representative of these four states when it states that programs "...delivered through telecommunications ... should meet as applicable the same academic requirements and standards as those courses and programs offered on-campus" (Louisiana Board of Regents' Policy on Telecommunications). It was determined that no state's treatment of electronically delivered programs was different in such a way as to create a barrier to a regional cooperative model.

7. Does your state regulate in-state institutions delivering distance learning at sites located outside the state?

Question 7 concerned regulation of out-of-state delivery of distance learning programs by in-state institutions. Failure to regulate the out-of-state activities by a state's own institutions would not allow a "reciprocity-based" approach (recognition of another state's approval). Six states indicated that there is not an existing in-state approval process. However, in the case of North Carolina, the University of North Carolina’s general administration does regulate its 16 constituent institutions. Stated another way, institutions from five states are apparently free to develop and deliver programming to another state without formal approval. It is unclear from the materials provided whether such out-of-state activities might actually be taking place. It is also unknown how such activities are treated regarding state funding, program approval, the counting of enrollments, etc. Whatever the case, the absence of in-state approval is an issue that must be given further consideration when establishing a regional model built on a requirement of in-state approval before taking electronic programs outside the state.

8. Does your state regulate distance learning programs distributed by institutions within your state?

Question 8 probed into the issue of program regulation by state agencies. This question relates both to program review processes as well as state coordination of programming. This has become an important internal approval activity for most states as distance learning and electronic delivery systems erase traditional land-based service areas and regional programming. Not surprisingly, the majority of states have some form of review procedures. As in question seven, the negative response by North Carolina must be footnoted since the University of North Carolina’s general administration does have a formal program review process for its 16 constituent institutions. In West Virginia, there appears to be some effort to coordinate, if not regulate, distance learning activities by its public institutions. Submission of proposals for new academic programs in the university system of West Virginia (Bulletin 23) requires institutions to submit information on program delivery and speaks specifically to methods "such as compressed video, World Wide Web, etc." and asks for information on new locations and requires documentation on clientele, need and existing programs. West Virginia is currently reviewing its policy in Bulletin 23 and anticipates a revision by Summer 1997. Thus, while the formal responses to question 8 suggested the two states in question did not regulate, it seems clear that both states do, at the very least, coordinate program activities in their respective states.

10. Does your state regulate through your agency electronic offerings delivered by your public and/or private institutions to sites located outside your state?

Question 10 sought information about whether regulatory efforts are handled through the state higher education agency for electronic offerings delivered outside the state. The responses to this question were quite varied and indicated that many different agencies are involved with regulatory efforts. Seven of the states indicated that the responding agency facilitated such regulation.

Results of Responses to Other Questions

Questions 1, 4, and 6, provided additional context about state regulatory practices and electronically delivered programs. The lack of an operational definition of "registration" in question 1 made responses difficult to assess. Eight states indicated they required some form of registration. If viewed as a minimal requirement to transact educational business in a particular state, it would appear that the majority of states have a gap in their regulations. However, the unanimous response to question 2, where all states require approval of some kind, obviated any potential problem from the responses to question 1. Clearly a case could be made that a state having some form of approval process has incorporated the minimum registration threshold in their regulatory scheme.

Question 4 dealt with the issue of physical presence. Clearly it is a central, and compelling, issue that triggers state regulation. However, while most states indicated its importance, few states provided any clear definition of what constitutes physical presence. The exception was the Texas regulation which offers that "the institution has a representative in this state, or solicits business in this state; and furnishes or offers to furnish courses of instruction in person, by electronic media, or by correspondence..." (Subchapter G, Chapter 61, Texas Education Code). In the electronic era, institutions are now operating remotely from the place of instruction, which might be at any location. What constitutes sufficient physical presence remains unclear.

Question 6 sought further insight into state regulation or approval of in-state institutions’ delivery of distance learning at sites within the state. All but two states have some type of review and approval process. In North Carolina, such activities are regulated by policies of the University of North Carolina’s general administration. The responses show a clear interest by the states in knowing about, and attempting to regulate, distance learning by institutions. The issue of "turf" that is surfacing in the electronic era is of particular importance.

Finally, information was sought about course approval (question 9), and the relationship of one state regulatory agency with its sister agencies in other states (question 11). In the former, eight states indicated that distance learning courses delivered within the state are regulated. The mechanisms for determining who is offering a course, and where, in any state are not well-defined and with the proliferation and availability of courses delivered electronically, state regulation of courses will be difficult. In the latter, only one state regulates delivery through cooperation with the appropriate state agency in another state. The interpretation is clear: states protect their interests within the boundaries of their state and do not seek to defer to agencies outside the state.

A number of questions (1, 2, 6, 7, 8, 9 and 11) asked states to indicate their approach to the regulation of private institutions. Responses showed that once a public or private institution delivers programming into another state, its funding status made little difference. Public and private institutions were subject to the same procedures and requirements. Question 6, dealing with the approval of in-state activities by private institutions, demonstrated the general lack of state oversight of private institutional activities. In all but six states the response for private institutions was directly opposite to the response for public institutions. There was a similar difference in state activity between public and private institutions concerning program regulation (question 8) and course regulation/approval (question 9). These responses are important in documenting the states' relationships with the private sector and for determining participation by private institutions in an expanded electronic compact.

Barriers and Concerns

In view of the responses of the states and the analysis above, the ultimate question is about regulatory barriers that would inhibit the development of an electronic common market. In short, while some barriers do exist that preclude certain models or strategies, there appear to be no significant regulatory considerations that would halt the development of such a regional approach. A simplified reciprocity arrangement--recognition by one state of another state's approval of programs emanating from that state (e.g., driver's licenses and marriage licenses)--is not possible. Not all states formally review and approve programming. Alternate strategies will not be limited by the regulatory climate. There is no regulatory reason why the cooperative effort cannot be developed.

While no significant barriers exist, there are a number of concerns that the survey results suggest:

an unevenness among the states in their approaches to the approval/licensure of out-of-state institutions

an array of different formats for collecting information and supporting documentation (although the data requested has common elements)

varying approaches to dealing with private institutions

the lack of a clear definition of "physical presence"

no common approach to course approval

a variety of terms and definitions to describe oversight practices and such terms as "distance learning"

Despite these issues, which might be best described as the unique approaches of member states, no singular issue or combination of issues precludes moving ahead with discussions of a shared regional approach to electronic program delivery. Strategies can be devised that will build upon existing cooperative models and the existing efforts of the states in quality control.

A number of other issues related to the full implementation of the Electronic Common Market will need to be addressed or considered in the months to come. These include financial aid to students and their classification as "full-time" students, non-credit professional development courses and programs, inclusion of private institutions of higher learning, and common standards.

Summary and Conclusions

There is little doubt that technology will continue to break down many traditional boundaries that have confined higher education to campuses and other location-bound delivery systems. Advances in communications technologies now make higher education programs and services more available than ever before. Regional approaches to meeting the needs of students in this era of technology may not be an option but rather a necessity. States will be hard pressed to control higher education activities from afar, particularly those which are electronically delivered. These activities lack even the physical presence of earlier technologies where students gathered in traditional classroom settings in front of television monitors. There is also little doubt that SREB member states, working cooperatively and in the spirit that has marked many regional efforts, can create a strategy to facilitate the sharing of programs and services across the 15 states.

Although there are a number of issues to be discussed and ultimately resolved, there are no barriers sufficient to thwart a concerted and cooperative effort to develop an Electronic Common Market in the region. Such an effort should be vigorously pursued as a benefit to all in the region. As has the ACM, the electronic common market can foster new partnerships and opportunities among states in the region, support the region's economic development efforts and ultimately assist in making the region's higher education institutions, programs and services the best in the nation.

This Survey Report was compiled by Dr. Bruce N. Chaloux, associate dean of the graduate school at Virginia Polytechnic Institute and State University, at the request of the Southern Regional Education Board’s Educational Technology Cooperative.

QUESTION BY QUESTION SUMMARY

Ql. Does your state require the registration of programs delivered in your state by out-of state institutions?

Seven of the 15 states surveyed do not require some form of registration for out-of-state programs.

Q2. Does your state require authorization/licensure/approval/registration of programs delivered in your state by out-of-state institutions?

All the 15 states require authorization, licensure, or approval of programs delivered by out-of-state institutions.

Q3. Does your state exempt regionally accredited out-of-state institutions from authorization/licensure/approval/registration procedures?

Only two of the states surveyed offer exemption from licensure, authorization, approval or registration for regionally accredited out-of-state institutions (Okla., Texas).

Q4. Is physical presence of the offering institution a central issue in your state as a requirement of policies or regulations?

Only three of the 15 states indicated that physical presence was not a central issue as a requirement of policies or regulations (Ga., Okla., Ark.).

Q5. Do your state policies and/or code treat electronically delivered programs from out-of-state institutions differently than those taught on-site in your state?

Four of the 15 states indicated that they treat electronically delivered programs from out-of-state institutions differently than those taught onsite in the state (Fla., La., S.C. Va.).

Q6. Does your state regulate in-state institutions delivering distance learning at sites located within the state?

Only three of the 15 states do not regulate in-state public institutions delivering distance learning at sites located within the state (Ala., N.C., Tenn.). However, the University of North Carolina has policies regulating the activity of its constituent institutions. Conversely, only six states regulate similar activities of in-state private institutions (Ark., Ky., Md., Miss., Okla., Tenn.).

Q7. Does your state regulate in-state institutions delivering distance learning at sites located outside the state?

Seven of the 15 states do not regulate in-state public institutions delivering distance learning at sites outside the state (Ala., Ark., Ky., Md., Miss., N.C., Tenn.). Conversely only one state regulates similar activities by in-state private institutions (Ga.).

Q8. Does your state regulate distance learning programs distributed by institutions within your state?

Four of the 15 states surveyed do not regulate distance learning programs distributed by public institutions within the state (Ala., N.C., Tenn., W.Va.). Conversely, eight states regulate similar activities by in-state private institutions (Ark., Fla., Ga., Ky., Md., Okla., Tenn.).

Q9. Does your state regulate distance learning courses distributed by institutions within your state?

Seven of the 15 states do not regulate distance learning courses distributed by institutions within the state (Ark., Md., N.C., S.C., Tenn., Va., W.Va.). Six states regulate similar activities of private institutions (Ala., Fla., Ky., Miss., Okla., Tenn.).

Q10. Does your state regulate through your agency electronic offerings delivered by your public and/or private institutions to sites located outside your state?

Seven of the 15 states surveyed do not regulate electronic offerings delivered by public/private institutions within the state to locations out of the state through the reporting agency (Ala., Ga., Ky., Md., Miss., N.C., Ark.). Five states regulate similar activities of private institutions (Fla., S.C., Tenn., Texas, W.Va.).

Q11. Does your state regulate through the appropriate agency in the other state(s) electronic offerings delivered by your public and/or private institutions to sites located outside your state?

Only one of the 15 states surveyed regulates through the appropriate agency in other states electronic offerings delivered by public/private institutions to sites located outside the state (W.Va.). No private institutions are similarly regulated.

APPENDIX 1

TABLE 1

State

10a

11a

Alabama

N ¹

N ²

Arkansas

Florida

N ³

N ⁴

Georgia

Kentucky

Louisiana

Maryland

Mississippi

North Carolina

N ⁵

Oklahoma

Y ⁴

South Carolina

Tennessee

Texas

Y ⁶

Y ⁷

Virginia

West Virginia

N ⁸

Y ⁹

YES/NO

8/7

15/0

2/13

12/3

4/11

12/3

6/9

8/7

1/14

11/4

8/7

6/9

8/7

5/10

1/14

0/15

Summary of State Responses to the SREB Survey on State Regulation of Higher Education Distance Learning Programs

Notes:

1. There are no regulations on electronically delivered programs.

2. The Commission regulates the activity (via program approval and when off campus physical instructional sites are established), but not the method of instructional delivery.

3. If the in-state institution is accredited, it is exempt from regulation. If it is not accredited, it is subject to regulation.

4. If the institution is accredited, it is exempt from regulation. If it is not accredited, it is subject to regulation.

5. The University of North Carolina General Administration has policies for its 16 constituent institutions.

6. Yes, if submitted for state funding.

7. No, unless there is a physical presence.

8. Unless there is a physical presence.

9. West Virginia regulates the delivery of academic programs, but not courses.

APPENDIX 2

Educational Technology Cooperative
SOUTHERN REGIONAL EDUCATION BOARD

SREB Electronic Educational Catalog

Survey of SREB State Regulations of Higher Education Distance Learning Programs

The SREB Educational Technology Cooperative has begun a process which will help coordinate the efforts of the SREB state agencies to deliver instruction electronically. A document entitled "Principles of Good Practices for Academic Degree and Certificate Programs that are Offered Electronically" was accepted by the members of the Cooperative at their annual meeting. This document, in concert with the enclosed survey, constitutes the first step by the Cooperative in the development of SREB regional efforts to deliver learning remotely.

Please provide copies of policies and regulatory statutes referenced in your responses. Respond to the following questions regarding how your state regulates distance learning programs and courses. To the extent possible, note the specific portion of the code or regulation referenced. This data will be compiled, analyzed and reported to provide baseline information upon which future decisions will be made.

Questions 1-5 of the survey refer to programs and courses offered by out-of-state institutions within the borders of your state. Questions 6-11 pertain to rules and regulations on offerings of in-state public and private institutions.

Thank you in advance for your cooperation and assistance.

Does your state require the registration of programs delivered in your state by out-of state institutions?

Public yes no

Private yes no