ED Negotiated Rulemaking: First Reactions and a Preview

A fond welcome and thank you to Van Davis, Foghlam Consulting, for his analysis of what will be discussed in the U.S. Department of Education’s rulemaking process, which begins this week. As you will see, there sure is a lot on their plate! With WCET’s Russ Poulin on one of the subcommittee’s, we will be coming back to you with a request for your input on some of the proposals.

Enjoy the read today and stay tuned for more on this topic in the upcoming weeks!

  — Lindsey Downs, WCET

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On January 6^th, WCET published Principles for Addressing Educational Innovations in the U.S. Department of Education’s 2019 Negotiated Rulemaking Process: A Working Document. This document outlined four areas of concern and five guiding principles that WCET in collaboration with other organizations believe the Department of Education and its negotiators should keep at the forefront of this spring’s negotiated rulemaking (negreg, for short) process. If you haven’t had a chance to read it, take a look. In that document, WCET suggests that the overarching goal of negreg should be protecting students, combating fraud, and fostering innovation. Based on that large goal, WCET urged the Department to focus on five key areas:

WCET also suggested that any proposed regulatory changes should rely on five guiding principles:

The federal government may be partially shut down, but that did not prevent the Department of Education (ED) from releasing several key documents associated with the negotiated rulemaking process set to kick off on January 14^th. For those of you who haven’t been obsessively following this process, here’s a quick primer before jumping into the pre-released proposed regulatory changes.

The What, How, Who, When, and Where

• What: Negotiated rulemaking is the process ED is statutorily required to use to make changes to certain regulations, especially those pertaining to federal aid.
• How: Last year the Department announced its intention to engage in negotiated rulemaking around several issues. It held three public hearings in September to hear suggested topics to be included in the negotiated rulemaking process. Because the Department decided to focus on many issues, it took the unusual step of appointing one primary rulemaking committee as well as three additional subcommittees—Distance Learning and Educational Innovation, TEACH Grants, and Faith-Based Entities. The subcommittees will make recommendations to the rulemaking committee which will then vote on any proposed changes. The larger committee must reach consensus for any proposed change to be approved. Because there will be  many very diverse issues considered, proposed rule changes will be grouped together by topic for the committee’s consideration.
• Who: The rulemaking committee is comprised of 15 members with an additional 15 alternates and includes WCET Steering Committee member David Dannenberg from the University of Alaska Anchorage. Each subcommittee has between 6 and 11 members. The Distance Learning and Educational Innovation subcommittee includes WCET’s very own Russ Poulin and former Steering Committee chair Leah Matthews. Both Leah and Russ have been involved in previous rounds of negreg on some of these issues.
• When: The meetings will take place over the next three months with multiple meetings each month. The main rulemaking committee will begin meeting January 14-16 and the Distance Learning and Educational Innovation subcommittee meeting will have its first meeting January 17-18.
• Where: All the meetings will take place in Washington, DC. The primary rulemaking committee meetings are open to the public. Although the subcommittee meetings are not open to the public, the Department intends to live-cast both the committee and subcommittee meetings. Information is located here.

What’s the Department Recommending

Unlike previous rounds of negotiated rulemaking, ED released its proposed changes to the regulations ahead of time. Their hope is that by providing the committee and subcommittees with specific language, there will be a greater chance of streamlining the process and reaching consensus. It’s important to remember, though, that this is just proposed language. It is highly likely that it will change before the committee actually votes on it. Nevertheless, the proposed language gives us a very good idea of the Department’s priorities.

The amount of ground the Department wants to cover in this round of negreg is unprecedented and the proposed regulatory changes encompass at least five different sets of regulations around institutional financial aid eligibility, accreditation, the Robert C Byrd programs, student assistance general provisions, and TEACH Grants. The Department has also released documents outlining changes to several other regulations related to religious inclusion and various Title IV financial aid programs. We’ll focus our attention today on the Department’s preliminary proposals regarding institutional eligibility, accreditation, and student assistance general provisions including changes to the credit hour definition, definitions of correspondence education and distance education, regular and substantive interaction, and distance education state authorization and reciprocity.

Section 600 Institutional Eligibility

In its document summarizing these changes, the Department writes that the purpose of these proposed changes are to “modify or clarify certain regulations that pertain to institutional eligibility, including updating definitions and making conforming changes to those proposed for accreditation and educational innovation.”  There are numerous proposed changes to key definitions that impact WCET members including changes or new definitions for: clock hour, correspondence education, credit hour, and distance education (including regular and substantive interaction). What follows is far from inclusive but does highlight some of the biggest proposals (and remember, these are just the Department’s initial proposals and are likely to change by the time the rulemaking committee votes on them).

• Clock hour (for institutions that use that measure in lieu of credit hour) would be amended to include a distance education specific option of “Fifty to sixty minutes in a 60-minute period of consecutive or non-consecutive academic engagement.” The proposed language goes to list possible academic engagement activities as:
  • Attending a synchronous class, lecture, or recitation online
  • Interacting with a faculty member or participating in an online discussion about academic matters
  • Participating in interactive tutorials or computer-assisted instruction
  • Taking exams.

The proposed language specifically disallows logging into an online class without active participation as well as academic counseling or advisement. Additionally, the amended clock hour definition would require institutions to monitor the student’s academic engagement in fifty out of sixty minutes for each clock hour.

• Correspondence education would be amended to drop the requirement that interaction be primarily initiated by the instructor and that regular and substantive interaction be defined by the institution’s accrediting agency. More on these regular and substantive interaction changes in a moment.
• The credit hour definition adopted during the Obama administration would be replaced with a new definition that states that a credit hour is “defined by an institution and approved by the institution’s accreditor and is based upon an amount of work, a unit of time spent engaged in learning activities, and/or a set of clearly defined learning objectives or competencies.” This new definition completely removes all mention of a credit hour/ clock hour equivalency.
• Distance education would be amended to expand instructors to also include “members of an instructional team” as determined by the institution’s accreditor. The amended definition would also get clarity on what constitutes regular and substantive interaction.
  • Regular and substantive interaction would be defined by accreditors but would conform to some basic thresholds.
    • Regular interaction would need to be initiated by instructors and instructional staff and not by students, might differ based on the program, and be at least once a week for non-term programs and equal to the number of weeks in the term for a term-based program.
    • Substantive interaction would include interactions with instructors or members of instructional teams that is designed to provide students with feedback that support their learning. An instructional team is defined as one where its members have “different and complementary roles and qualifications as required by the accrediting agency” and include things like answering questions, direct instruction, providing assessment or feedback, monitoring academic progress, or providing students with “support directly related to the student’s success in a particular course.” General academic advisors would not be considered as members of the instructional team.

This section also contains a few more substantive proposed changes that might be of interest to WCET members.

• Section 600.7 proposes new language on calculating correspondence students that defines a correspondence student as “a student whose enrollment during an award year was entirely in correspondence courses.”
• Section 600.9 addresses state authorization and reciprocity agreements. Well, sort of but not really. More than probably any other issue in these regulations, out-of-state distance education authorization has been an albatross around the Department’s neck (for a bit of history take a look here, here, here, here, here, here, here, and here). Basically, the Department seems to be deleting all of the federal state authorization language introduced in 2016 (including the definition of a reciprocity agreement) and, possibly, looking at the committee and subcommittee members for help in sorting this out. Remember, even if the federal state authorization requirements are removed that the state laws and regulations remain in effect.

Section 602 Accreditation

In its document summarizing these changes, the Department writes that the proposed regulatory changes would provide accreditors and their institutions with “greater latitude to innovate; to create healthy competition among institutions and accreditors; to provide agencies with increased independence in their recognition and oversight responsibilities; and to reduce unnecessary regulatory burden and oversight redundancies” (a repeated restrain throughout the summary documents).  There is a lot to unpack here including some pretty sweeping changes to the regional accreditors and accreditation. What follows is far from inclusive but does highlight some of the biggest proposals (and remember, these are just the Department’s initial proposals and are likely to change by the time the rulemaking committee votes on them).

• Section 602.10 proposes limiting regional accreditors membership to up to ten states. If this proposal is accepted, and I doubt it will be, it would impact SACS (11 states, Latin America, and other international sites) and HLC (19 states). For its part, the Department claims that modifications to regional accreditation is necessary because “some regional agencies have abused the current distinction to push a false narrative that the Department considers regional accreditation superior to national accreditation.” The Department also claims that the proposed changes would “level the playing field” between regional and national accreditors.
• Section 602.12 proposes allowing the Department to recognize new accreditors if they can prove that there are appropriate accrediting policies in place rather than wait until they have been accrediting or pre-approving institutions for two years. According to the Department, this would eliminate the “chicken-and-egg problem” in the existing regulations.
• Section 602.16 proposes a variety of changes to the accreditation and pre-accreditation standards. For WCET members, the most interesting proposals relate to:
  • Reinforcing that accreditors would have the primary authority for defining regular and substantive interaction.
  • Allowing career, technical, and vocational institutions adopt non-shared governance models.
  • The Department also specifically asks committee and subcommittee members for assistance in determining:
    • “[H]ow and when agencies should be allowed to grant waivers to institutions, such as to support innovation or in situations where an institution cannot reasonably be expected to comply with a given standard” and how student outcomes could be integrated into such a consideration.
    • “[H]ow it could discourage or prevent accreditors aligning with state licensing bodies or other vocational credentialing boards to exclude the licensure of individuals who prepare for work through apprenticeship, the military, or other work-based learning pathways, and to prevent accreditors from responding to efforts to expand or elevate credentials that serve as minimum requirements for licensure or certification.”
    • “[H]ow to ensure that transfer of credits remain the decision of institutions, but disallow institutions from categorically denying credits from national accreditors if the courses completed by the student are in alignment with those offered by the accepting institution.”
  • Section 602.17 proposes several changes to the application of standards in reaching an accreditation decision. For WCET members, the most interesting proposals relate to:
    • Removing the requirement that programs should “maintain degree and certificate requirements that at least conform to commonly accepted standards.” In its summary document, the Department argues this would provide institutions with greater flexibility and give accreditors the opportunity to establish “alternative” standards for innovation.
    • Clarify that institutional self-studies should focus on how an institution is addressing the needs of its specific student population.
    • Update student identification requirement
    • The Department also asked negotiators to help develop regulations that “ensure continuous improvement and rigorous outcomes, while at the same time avoiding one-size-fits-all solutions that fail to appropriately account for differences in institutional mission, occupational pathways, or the accountability that students have for their own success.”
  • Section 602.18 proposes several changes related to consistency in decision making. Most notably, the proposals include adding direct assessment to the existing regulations.
  • Section 602.20 proposes several changes regarding enforcement of standards. Most notably, the proposals include allowing accreditors to selectively target institutional programs with negative actions without revoking accreditation of the entire institution. The Department rationalizes this proposal with the following statement found in the summary document: “The Department believes institutions often escape sanction because the penalties and tools available to agencies are too harsh and inflexible. Instead, agencies may be more likely to take swift action and apply sanctions when needed if they can more effectively target their action to the specific areas of non-compliance.”
  • Section 602.22 proposes changing substantive change policies so that institutions must only seek pre-approval for “high risk activities.”

Section 668 Student Assistance General Provisions

In its document summarizing these changes, the Department proposes sweeping changes, including a number having to do with financial aid and direct assessment.

There is a lot to unpack here, and what follows is far from inclusive but does highlight some of the biggest proposals (and remember, these are just the Department’s initial proposals and are likely to change by the time the rulemaking committee votes on them).

• Section 668.2 proposes changing the definition of a full-time student to prevent a student from receiving title IV aid for retaken coursework in a subscription-based program. It also adds a definition for subscription-based program.
• Section 668.3 proposes changing how a week of instructional time is calculated to recognize direct assessment program and asynchronous learning. Specifically, the Department includes a definition of asynchronous learning and points out in its summary document that the current definition of week of instructional time “does not account for this type of program structure.” The new proposal would link week of instructional time to the availability of learning materials and faculty interaction rather than common course meetings.
• Section 668.8 proposes changing the number of clock hours in a semester or trimester from 37.5 to 30.
• Section 668.10 proposes simplifying direct assessment regulations including requiring institutions only receive Departmental approval for a first direct assessment program and not subsequent programs.
• Section 668.34 proposes several changes to satisfactory academic progress (SAP) that would allow credit hour programs to use credit hours or calendar time for determining a program’s maximum time frame. Other proposals in this section include specific measures related to determining SAP for subscription model programs.
• Section 668.50 proposes eliminating the 2016 regulations slated for enactment in 2020 around the institutional disclosure for distance or correspondence education programs. This section includes the requirements that institutions disclose a number of things including:
  • Authorization to operate in a student’s state
  • Process by which students can lodge complaints
  • Adverse state or accreditor actions against the institution
  • Refund policies
  • Licensure and certification prerequisites in the state in which a student resides and whether the institution’s programs fulfill those requirements
• Section 668.164 proposes several changes in the disbursement of financial aid. Most notably, it proposes a new disbursement model for subscription programs that would provide students with a partial financial aid award at the beginning of a subscription period and subsequent awards determined by the completion of courses or competencies.

Why You Should Care and What You Can Do

It’s important to remember that all of these are just the initial set of proposals. ED is trying to make the most effective use of time given the crowded field of regulatory changes it wants the negotiators to address. Unlike in previous years, they are starting out with a set of proposals—in essence, a set of strawmen—for the negotiators to respond to and discuss. What the negotiators end up voting on is likely to be different than these initial proposals.

Nevertheless, the starting proposals can give us a good indication of what the Department’s priorities are and how it wants to address them. Based on the initial documents it appears that the Department is keen on changing accreditation, eliminating confusion around regular and substantive interaction, providing pathways for innovation, and adapting standards for asynchronous delivery. What the Department seems less sure of is how to handle state authorization and reciprocity agreements.

Negotiators have a long road ahead of them before being able to reach an agreement on any of these issues. And with unanimous consensus required, it’s very possible that no agreements could be reached. If the negotiators can’t reach an agreement, the Department can propose its own rules for public comment and subsequent adoption. If that happens, the Department could propose something along the lines of what they have sent to committee and subcommittee members for discussion or it could propose something entirely different.

And all of this assumes that rulemaking would be a priority for the Department. With a Democratic controlled House, we should expect to see Secretary DeVos and her senior staff be called to testify on several issues, including how they are balancing these proposals against student and consumer protection.

Finally, it’s worth remembering that the Department has lost many of its staff over the last two years.

That reduction in staff means that not only are there fewer bodies to work on the rulemaking process but there has been significant brain drain. And neither of those things bodes well for such an intricate, complex, and huge attempt to overhaul the regulatory landscape.

Fasten your seatbelts because the next few months are likely to be a wild ride.

 

 

Van Davis
Principal
Foghlam Consulting, LLC
WCET Steering Committee Member

 

 

 

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