DISTANCE EDUCATION AND INNOVATION FINAL RULES RELEASED

New Distance Learning Regulations will be published in the Federal Register soon which make some significant changes to earlier and longstanding guidance on the subject.

These new regulations will take effect on July 1, 2021 but ED has earmarked them for early implementation once the rules are published officially in the Federal Register. Some institutions may want to do just that, especially since COVID-19 has made online and distance education predominant methods of education delivery. For others, there actually some pretty good incentives to early adopt. Look at these highlights from ED’s summary of the Distance Education and Innovation Rules:

  • Provide flexibility to distance education, competency-based education (CBE), and other types of educational programs that emphasize demonstration of learning rather than seat time when measuring student outcomes.
  • Remove confusion about the distinction between distance education and correspondence courses and more clearly define the requirements of “regular and substantive interaction” between students and faculty and the permissibility of engaging instructional teams in the delivery of education through distance learning. In addition, given the increasing reliance on mixed-modalities among different courses in a student’s program, the new regulations clarify that, when calculating the number of correspondence students, a student is considered “enrolled in a correspondence course” if correspondence courses constitute 50 percent or more of the courses in which the student enrolled during an award year.
  • Allow institutions to respond to students’ educational needs and potentially shorten the time to degree completion and the cost of completing a credential through direct assessment programs by:

 

  • Clarifying the requirements for direct assessment programs, including how to determine equivalent credit hours and how to distribute aid to simplify administration, reduce confusion, and protect taxpayers.
  • Limiting the requirement for institutions with strong track records to obtain approval from the Secretary for only the first direct assessment program offered by the school at a given credential level. Institutions with proven track records will still be overseen by accreditors, but the additional Department approval for subsequent programs would be removed.
  • Requiring institutions to report to the Secretary when adding a second or subsequent direct assessment program or establishing a written arrangement for an institution or organization that is not eligible to participate in the Title IV, HEA program to provide more than 25 percent, but no more than 50 percent, of a program. This requirement balances necessary transparency with greater flexibility for institutions to create partnerships, leading to jobs for students.
  • Recognizing the value of “subscription-based programs,” and simplifying rules regarding the disbursement of title IV funding to students enrolled in these programs, which allow students to work at their own pace and complete their programs more quickly while paying a flat fee, rather than per credit tuition. The rule would create a new, student centric system for disbursing title IV, HEA assistance to students in subscription-based programs.

 

  • Require prompt action by the Department on applications by institutions to the Secretary seeking certification or recertification to participate as an eligible institution in the HEA, title IV program. In the past, such applications have been stalled for months or even years.

 

  • Clarify that the Secretary may deny an institution’s application for certification or recertification to participate in the title IV, HEA programs if an institution is not financially responsible or does not submit its audits in a timely manner.

 

  • Add a definition of “juvenile justice facility” to ensure that students incarcerated in a juvenile justice facility continue their eligibility for Pell Grants.

 

  • Allow students enrolled in Title IV, HEA-eligible foreign institutions to complete up to 25 percent of their programs at an eligible institution in the United States. This provision is particularly important for students temporarily unable to attend courses abroad due to the COVID-19 pandemic, for students who wish to accelerate degree completion by taking classes while in the U.S. during school breaks, and enabling students who need to return to the U.S. for other reasons to remain enrolled in postsecondary education and making progress toward credential completion.

 

  • Encourages employer participation in developing educational programs by clarifying that institutions may modify their curricula based on industry advisory board recommendations without relying on a traditional faculty-led decision-making process.

 

  • Simplifies clock-to-credit hour conversions and clarifies that homework time included in the credit hour definition do not translate to clock hours, including for the purpose of determining whether a program meets the Department’s requirements regarding maximum program length.

 

  • Encourages institutions to give students equal credit for time spent preparing for and participating in lecture and laboratory courses. For decades students have received less credit for completing laboratory courses than lecture or other courses.

 

  • Clarify, in consideration of the challenges to institutions posed by State’s varying minimum program length standards for occupational licensing requirements that an institution may demonstrate for purposes of participating in title IV, HEA programs, a reasonable relationship between the length of a program if the number of clock hours does not exceed either 150 percent of the minimum requirement to work in the State in which the institution is located or 100 percent of the minimum hours in an adjacent State.

 

  • Provide that the Secretary will rely on the accrediting agency or State authorizing agency to evaluate an institution’s appeal of a final audit or program review determination by the Department that includes a finding about the institution’s classification of a course or program as distance education or the institution’s assignment of credit hours.

 

  • Encourage closing institutions to offer quality teach-outs by permitting the application of sanctions to individuals or institutions affiliated with other institutions that closed without executing a viable teach-out plan or agreement.

OIG LAUNCHES NEW PORTAL FOR SCHOOLS TO REPORT DISTANCE EDUCATION FRAUD RINGS

The U.S. Department of Education’ s Office of the Inspector General has a new website to use for reporting suspected fraud rings in distance education programs. The new portal is encrypted and will allow institutions to submit referrals securely and electronically. To assist schools in reporting information about specific individuals they believe are engaging in fraud rings in distance education programs, the OIG and FSA have released an updated fraud ring reporting spreadsheet which can be securely loaded onto the portal. Check out this electronic announcement from the OIG for more information. And remember if you suspect fraud related to Tittle IV, just call the OIG hotline at 1-800-MIS-USED (1-800-647-8733).

NEW NPRM TO TAKE UP ACCREDITATION CREDIT HOUR DEFINITION AND MORE

The Department of Education released a Notice of Proposed Rulemaking last week to convene more negotiated rulemaking committees. This time the Department plans to take up issues related to a number of issues related to accreditation, distance education modalities and faith based education. Among the specific issues they aim to address, the Department plans to hold several negotiated rulemaking sessions to discuss

  • Requirements for accrediting agencies in their oversight of member institutions;
  • Requirements for accrediting agencies to honor institutional mission;
  • Criteria used by the Secretary to recognize accrediting agencies, emphasizing criteria that focus on educational quality;
  • Developing a single definition for purposes of measuring and reporting job placement rates; and
  • Simplifying the Department’s process for recognition and review of accrediting agencies.
  • Additionally the committee will take up issues related to State Authorization, Definition of a Credit Hour, the Definition of Regular and Substantive Interaction.

Public comments and recommendations are open until September 14, 2018.

UPDATE: STATE AUTHORIZATION RULES TO BE DELAYED – NOT SO FAST

DID THE U.S. DEPARTMENT OF EDUCATION MISS THE DEADLINE TO DELAY STATE AUTHORIZATION RULES?

Sure looks like it.

Following a confusing draft notice published in the Federal Register over the weekend, it seemed that the U.S. Department of Education was ready to delay a set of State Authorization rules that were scheduled to take effect on July 1, 2018. The rules, which apply to distance education providers such as online schools and colleges were to be delayed until July 1, 2020, according to the draft which was scheduled to be released on July 3rd. That date is significant as we’ve come to find out.

Clare McCann , Deputy Director for Federal Policy, Education Policy at New America pointed out the obvious point it seems everyone, myself included was missing. The 2016 State Authorization rules have in fact already taken effect as of… you guessed it. July 1st.

“The state auth distance ed story you missed: The rule is currently in effect!”

@usedgov missed the deadline, so it took effect July 1. So much for resolving confusion in the field. I’m willing to bet plenty of schools including all NC-Sara schools are out of compliance today.”

While she may not have been the first person to notice this, she was certainly the first to tweet it.

Later, Barmak Nassirian, Director of Federal Relations and Policy Analysis at AASCU clarified that since the final rule wasn’t published by July 1st, the Department will have to follow the rules in the Administrative Procedures Act which include “justifying a change in conformity with the SCOTUS 1983 State Farm Case, go through reg neg, and produce a final rule subject to the master calendar requirements of HEA”.

I have a feeling this isn’t the last we’ll hear about the State Authorization Rules, but all eyes are on Betsy DeVos and the U.S. Department of Education to see what their next move will be. In the meantime, absent any other guidance from ED, it seems that the follwing provisions have indeed taken effect:

CFR 600.2 – Definition of State Authorization Reciprocity Agreement

CFR 600.9 (c) – State Authorization Distance Education Regulations

CFR 668.2 – Definition of Distance Education

CFR 668.5 – Institutional Disclosures for Distance or Correspondence Program Regulations

CFR 600.9 (d) – State Authorization of Foreign Locations of Domestic Institutions

This is an update to a post from our montly newsletter “STATE AUTHORIZATION DISTANCE EDUCATION REGULATIONS TO BE DELAYED“.


What are the most frequently cited program review findings? Find out here.

FINAL REGULATIONS FOR STATE AUTHORIZATION – DISTANCE ED

As required by the Higher Education Act, State authorization has been a longstanding requirement that necessitates state oversight of institutions. Each Title IV eligible institution has to be authorized in the state in which they are located as a condition for participation in Title IV Federal student aid programs.  While all higher education institutions must have state authorization in the states in which they are physically located, there have been no federal regulations for distance education providers in states where the institutions are not located and since 2010, ED has been seeking tighter regulations.

Just before the holidays, the U.S. Department of Education announced final rules on State Authorization of Postsecondary Distance Education detailing new requirements for colleges and schools that offer online distance education programs to students physically located in other states to follow. The rule is scheduled to go into effect July 1, 2018 and requires institutions offering distance education to be legally authorized to operate and monitored by an appropriate state agency in each state where their students reside. For schools with a national presence, this requires a school to obtain authorization is nearly every state in the country. Fortunately, the new regulations recognize authorization through participation in a state authorization reciprocity agreement such as SARA (which now boasts as many as 45 states sharing reciprocity), as long as the agreement does not prevent a state from enforcing its own laws.

Here’s a summary of the new rules:

  • Student Complaint Process Documentation – Institutions must document the state process for resolving student complaints regarding distance education programs.
  • Disclosure Requirements – Institutions must provide public and individualized disclosures to enrolled and prospective students in distance education programs, including adverse actions taken against the school, the school’s refund policies, and whether each program meets applicable state licensure or certification requirements. Schools must also explain to students the consequences of moving to a state where the school is not authorized, which could include loss of eligibility for federal student aid.
  • Branch Campuses or Additional Locations in a Foreign Location Authorization – Foreign branch campuses or locations must be authorized by the appropriate foreign government agency and, if at least half of a program can be completed at the foreign location or branch campus, be approved by the accrediting agency and reported to the state where the main campus is located.

Read the Federal Register, which includes important preamble info here and be on the lookout for implementation guidance later this year.