DISTANCE EDUCATION AUTHORIZATION IN TENNESSEE
I. INTRODUCTION
In Tennessee, the traditional regulation of non-exempt postsecondary educational institutions is governed by the Tennessee Higher Education Authorization Act of 2016, Tennessee Code Annotated Title 49, Chapter 7, Part 20, and Rule Chapters 1540-01-02 and 1540-01-10. The purpose of the regulation is to:
provide for the protection, education, and welfare of the citizens of this state, its postsecondary educational institutions, and its students, through regulatory oversight to ensure consumer protections are appropriately maintained, while also acknowledging the heightened standards institutions may achieve and maintain through academic accreditors.
See Tenn. Code. Ann. § 49-7-2002. The Tennessee Higher Education Commission (“THEC”) is the state agency tasked with the regulatory function.
Oversight of certain postsecondary educational institutions is also governed by the State Authorization Reciprocity Agreement Act. Tennessee Code Annotated Title 49, Chapter 7, Part 15. As a result of this act, Tennessee became a member of the State Authorization Reciprocity Agreements (“SARA”) in 2015, and THEC serves as the state portal entity.
This document contains information specifically relevant to out-of-state institutions offering distance education. Generally, a non-exempt postsecondary educational institution creating a physical presence in Tennessee must obtain authorization to operate or engage in certain activities in Tennessee. A detailed flowchart designed to help institutions determine whether authorization is needed is available HERE. If after reviewing the flowchart and this document, you determine that your institution does not engage in any activity creating a physical presence thereby requiring authorization, then no further action by your institution is required. However, if you determine otherwise, the next question is whether your institution meets the criteria for receiving an exemption. A detailed list of exemptions is available at Exemption Authority Attachment.pdf. The exemption determination process is described in this document at Section III, “Exemptions.” If no exemption applies and your institution is creating a physical presence, then you must submit an application for authorization. The application process is described in this document at Section IV, “Obtaining Authorization.”
II. COMMONLY ASKED PHYSICAL PRESENCE QUESTIONS
Q1. A student at my institution wants to engage in a supervised field experience in Tennessee. Does my institution need to be authorized? Per Rule 1540-01-02.03(54): “Supervised field experiences” means a student learning experience comprised primarily of the practical application of previously studied theories and skills, under the oversight of a supervisor, mentor, faculty member or other qualified professional who has a direct or indirect reporting responsibility to the institution where the student is enrolled, whether or not credit is granted. The supervised field experience is part of a program of study offered by the enrolling institution. Examples include, but are not limited to, practica, student teaching, clinical placements, or internships.
A1. If the identification and selection of the supervised field experience site is student driven, then such does not create a physical presence in Tennessee that would require state authorization. THEC understands that your institution may need to evaluate the appropriateness of the supervised field experience site selected by a student, but evaluation does not trigger a need for state authorization. Your institution may even enter into an agreement with the supervised field experience site if the agreement is student specific and not intended to create an on-going relationship between the institution and the site.
Q2. My institution maintains a list of approved supervised field experience sites in Tennessee. The students must complete a supervised field experience at one of the approved sites. Does my institution need to be authorized?
A2. Yes, if your institution initiates an arrangement with any individual, business, organization, or entity located in Tennessee for the purpose of providing a supervised field experience opportunity and requires students to select a training site from a list maintained by the institution, your institution is creating a physical presence. Unless an exemption applies, your institution will need to be authorized.
Q3. A Tennessee student contacted my institution about enrolling. We do not advertise or recruit in Tennessee. Will enrolling the student require authorization?
A3 You may enroll the student if the institution is not conducting any prohibited activities. THEC understands that students become aware of out-of-state institutions either through name recognition or through their own research. Like the supervised field experience scenario discussed above, if a student initiates
contact with your institution, enrolling the student does not create a physical presence if it does not involve any of the prohibited activities.
Q4. My institution would like to employ an instructor who resides in Tennessee. If the Tennessee resident instructor leads a distance education class, will my institution need to be authorized?
A4. If the instructor leads a distance education course from their residence in Tennessee, then authorization is not required. However, an institution may create a physical presence if it maintains a non-residential location in Tennessee from which instruction occurs, for example, the institution maintains office space for instructors.
III. EXEMPTIONS
If you have determined that your institution is creating a physical presence in Tennessee, you need to obtain authorization unless your institution is exempt from state authorization. Exemptions can be found at Tenn. Code Ann. § 49-7-2004 and Rule 1540-01-02-.05. A detailed list of exemptions is available at Exemption Authorities. As previously noted, Tennessee does not specifically exempt distance education providers. Therefore, you should review all exemption provisions for applicability.
If after reviewing the exemption authorities, you believe that the instruction meets the requirements of one or more of the enumerated exemptions, then no further action is required, unless you want an exemption determination. Per statute, an exemption applies if an institution or its instruction meets the terms of an exemption. That being said, third parties may want to see a formal exemption determination, so THEC offers this service. If you want to request a formal exemption determination you must complete the Exemption Determination Request and pay the fee. THEC will then approve or deny the request. Rule 1540-01-02-.07(10) describes the process for reviewing requests.
IV.
OBTAINING AUTHORIZATION
The first step to obtaining authorization in Tennessee is to file an application for authorization. Tennessee has two authorization pathways available. A comparison chart of the alternatives is at Options for State Authorization Links to the applications are Application for Initial Authorization Application and Application for Optional Expedited Authorization.
Once your application and fee are received, the application will be reviewed by a staff member of the Division of Postsecondary State Authorization (“DPSA”). Application review is conducted pursuant to Rule 1540-01-02-.07(1) and (2) for Initial Authorization
Applications and Rule 1540-01-10-.03(d) and (e) for OEA Applications. Consideration of applications often take between three and six months.
V. “AUTHORIZATION NOT NEEDED” LETTER
THEC does not generally issue “Authorization Not Needed” letters. Instead, THEC will consider whether issuance of such a letter is appropriate at such time that the U.S. Department of Education requests that an institution demonstrate that state authorization is not required. If your institution receives a request from the USDOE, you may request that THEC issue an “Authorization Not Needed” letter by submitting a written request, along with the request from the USDOE, to THEC’s Office of General Counsel at thec.rcd@tn.gov
VI. STATE AUTHORIZATION RECIPROCITY AGREEMENTS (“SARA”)
A SARA participating institution acting in accordance with Section 5.2(b) of the SARA Policy Manual does not have to obtain authorization in Tennessee. If the institution is engaging in activities in Tennessee as described in Section 5.2(a) of the SARA Policy Manual, then the Tennessee physical presence and exemption analysis applies. A detailed flowchart designed to help institutions determine whether authorization is needed is available at State Authorization Flowchart.
Commonly Asked Questions
Q1. My institution has been approved as a SARA institution in its home state. What do I need to submit to Tennessee to begin offering distance education to Tennessee students?
A1. Nothing, there are no filing requirements in Tennessee for an out-of-state SARA authorized institution.
Q2. My institution is a participating SARA institution. The institution has an arrangement with a business located in Tennessee for the purpose of providing externships for its students. Is this arrangement permitted by SARA?
A2. Per Section 5.11(d)(1) of the SARA Policy Manual:
d. A contract for supervised field experiences to be covered by SARA is limited as follows. Such a contract:
1. Cannot provide for the placement of more than 10 students from an individual academic program placed simultaneously at one clinical or practicum site, unless approval for a larger number is provided by the host state SARA State Portal Entity.
Note that if an institution is placing more than 10 students as described above, then the institution should review Section II of this document. Also, note that Section 5.11(d)(2) and (3) of the SARA Policy Manual permits a host State Portal Entity to object to the supervised field experiences in certain circumstances.
Q3. My institution has been approved as a SARA institution in its home state. Is my institution subject to any closure or bonding obligations in Tennessee?
A3. If your institution is approved for SARA by its home state and the institution is acting with the physical presence parameters of SARA, then authorization is not required and no closure or bonding requirements apply.
VII. QUESTIONS
Questions about this document or the references herein, should be sent in writing to THEC’s Office of General Counsel at thec.rcd@tn.gov.