Published by: WCET | 7/22/2024
Tags: Department Of Education, Distance Education, Managing Digital Learning, Negotiated Rulemaking, Online Learning, Regulation, SAN, State Authorization, State Authorization Network, Student Success
We’ve been waiting with bated breath to see if the U.S. Department of Education would surprise us when they released the Notice of Proposed Rulemaking (NPRM) and proposed regulations related to the most recent negotiated rulemaking.
Spoiler alert, they have now released the NPRM with proposed rules on distance education. We know that there are no surprises, but there is a lot to be concerned about.
What follows is our analysis of the NPRM and some thoughts on how to make your voice heard. Please note that time is of the essence. You only have a 30-day window in which to make your voice heard on these regulations that will have a massive impact on distance education and digital learning.
Note that in the following analysis, we sometimes reference page numbers in the unofficial version of the NPRM published on July 17, 2024.
Readers may remember the most recent negotiated rulemaking that was concluded earlier this spring focused on several items, including:
Earlier this week, the Department released the distance education-related regulations and return to Title IV regulations for public comment. In a blog post published on July 17th, the Department indicated that it would publish proposed regulations related to cash management, reciprocity, and accreditation “by next year” as it is “tak[ing] additional time to carefully consider these important, complicated issues, and refine solutions that address important challenges for students while balancing the need for quality oversight and improved student protections with the burden on institutions and changes impacting college accrediting agencies.”
A quick reminder of the rulemaking process. Because negotiators did not reach consensus in all but one area of the negotiated rulemaking, the Department is able to propose its own language for the rules through its NPRM. The publication of the NPRM in the Federal Register in the next few days starts the clock ticking on 30 days for the public to comment. At the end of that 30-day period, the Department will review all public comments, make any changes to the proposed language that it feels is warranted, and then will publish the final rules. If those final rules are published by November 1, 2024, then they will go into effect on July 1, 2025. If they are published after November 1st, they will go into effect July 1, 2026.
You may be wondering what the Department’s rationale for these proposed regulations is. We repeatedly heard during negotiations that the Department has a responsibility to protect students and ensure that the sizeable federal investment in higher education through Title IV federal financial aid is protected. In that July 17th blog post, Under Secretary James Kvaal, writing for the Department, reiterated that these proposed rules would “further protect students and taxpayers” and “update and improve outdated processes, consolidate rules, and establish more consumer-friendly policies for students to access the aid to which they are entitled.”
Under current regulations, an institution must follow a complex set of rules to determine the amount (if any) of disbursed federal aid should be refunded to the Department of Education if a student withdraws from a course or the institution. If a student withdraws without official notice from a distance education course(s), the institution must determine the “last day of attendance” for that student. The Department of Education defines the “last day of attendance” as the last time the student participated in one of the activities associated with “active engagement” in a course. This might include taking a test, submitting a paper, or participating in an online discussion about the course content. Logging into the learning management system without any other activity does not count.
Citing some amorphous instances of institutions not adequately documenting the student’s last day of attendance, the Department proposed the following to “simplify” and improve the accuracy of determining the student’s last day of course activity:
We are dubious that the proposed regulations would “simplify” compliance for institutions. As we reported back in March, we talked with individuals from several institutions and NASFAA (the financial aid organization) and heard that with the exception of fully-online institutions or those institutions that are already taking attendance, the proposed regulations would not simplify things at all. In fact, they thought it would greatly increase the work involved for such actions with the addition of necessary policy creation, faculty development, software changes, and the faculty and administrative time to take attendance on each and every student for each and every course.
We also have grave concerns regarding the 14-day requirement. We are concerned that this proposed language will inadvertently negatively impact adult learners. Many of the individuals we spoke with reminded us that with adult learners, it is not uncommon for them to not engage in coursework for a period of time but still complete the course successfully. Additionally, this 14-day requirement will create more burden for faculty to understand, administer, collect, and archive formal leave of absence notices for students who will be gone for more than 14 days. Examples of such leaves include students on temporary military duty or those experiencing health issues. Finally, there are academic implications. To improve student learning and address academic integrity requirements, some faculty have employed authentic assessment techniques that engage students in research or studies in the community or their chosen profession. Sometimes, these assignments take more than 14 days of research or fieldwork. Meanwhile, the instructor is available for questions, but the possible lapse in academic engagement will need to be documented.
Although most financial aid is disbursed to students through the credit hour, some programs use clock hours as the basis for financial aid disbursement. This type of disbursement is most prevalent in practical programs like welding or cosmetology. In clock-hour programs, aid is literally determined by the number of student participation minutes associated with the program.
During the recent negotiated rulemaking, the Department expressed concern that institutions offering asynchronous clock hour programs were not adequately tracking the amount of time students spent in their asynchronous courses. One negotiator went so far as to accuse asynchronous clock-hour programs of being nothing more than students watching a bunch of YouTube videos. For “evidence” the Department cites a New America analysis of a survey conducted by another organization. Unfortunately, the survey was about student satisfaction with COVID-era remote learning, and there appears to be no mention of whether the instruction was asynchronous or synchronous, as often happened during COVID. As a result, the Department is proposing to “disallow enrollment in asynchronous distance education courses for programs that use the clock-hour method of financial aid disbursement.” It is important to note that this only applies to clock-hour courses and does not impact credit-hour courses.
Although the Department cited problems with institutions accurately tracking the time students participate in asynchronous clock-hour courses, it was unable to provide specific institutional examples or the scope of the problem. They said that they witnessed some institutions that spent lots of time and money getting it right. We understand the Department’s concern, but we worry about those institutions being punished for the non-compliance of others. We are also very afraid that this prohibition will hurt the students in these programs, many of whom have the greatest need for financial aid. During the negotiated rulemaking public comment period, we heard many current and former students speak about how they would be unable to participate in face-to-face clock-hour programs and would be forced to withdraw from their asynchronous programs should the Department pull financial aid for those programs. For a Department that expresses a desire to help those students most in need, this decision to eradicate financial aid for asynchronous clock-hour courses and programs seems likely to hurt the very students the Department purports to help.
Institutions currently report students as participating in one of three physical locations: a) the main campus, b) a branch campus, or c) an additional location (which the Department defines as a “physical facility that is geographically separate from the main campus of the institution…at which the institution offers at least 50 percent of an educational program.”
In addition to the existing three location categories, a fourth, “virtual location,” would be added for “which the institution offers 100 percent of an educational program through distance education or correspondence courses, notwithstanding requirements for students to complete on-campus or residential periods of 90 days or less.” The institution would assign the student to one of these four locations.
This Department claims this new classification will be beneficial as it will help it:
There are some definite benefits, but we are not sure we have been given the full details of exactly how this will work, so we have some reservations. As to the benefits listed above:
The Department is expected to analyze the costs for compliance for each of its recommendations. Unfortunately, there is no separate analysis of implementing a virtual location. We are not sure if this is an oversight or if they considered it part of their analysis for collecting data, as outlined in the next section of this post. There will be a great need for work and coordination between the institutional registrar, provost, financial aid, and distance education leadership to make policies and implement the required technical changes. There will be a cost. We have more significant questions about the data collection proposed.
As noted with the creation of the Virtual Location proposed above, the Department is keen on collecting additional data on distance education. In the Virtual Location discussion, they cited the purposes of “program oversight, audits, looking at outcome metrics, and College Scorecard program-level data, including debt, earnings, and completion.”
A few negotiators also proposed that for each student receiving Title IV financial aid, “the institution must submit to the Secretary, in accordance with procedures established by the Secretary, a report regarding the recipient’s enrollment in distance education or correspondence courses.” The Department goes on to write (p. 41) that “the proposed addition of a definition for distance education course would enable the Department to better assess the effectiveness of distance education and compare its outcomes with those of traditional in-person instruction.”
This is a significant increase in institutional data reporting. The Department will provide the details later (“we would explain the details of this reporting in guidance pertaining to the operation of the Department’s systems”) along with an opportunity for institutions to provide feedback on the proposed data collection elements.
To give time for that process and institutional implementation, the effective date is delayed to July 1, 2026, so institutions will have sufficient time to make the necessary changes.
As we wrote back in March, we are still trying to figure out the long-term implications. While we have long advocated for more data about distance education, we are heartened that the Department recognizes that this will take effort and time for both the FSA staff and the institutions. The delay and opportunity for feedback are welcomed.
We do have significant concerns:
Importantly, we have sincere concerns about how the Department might use such data. We hope clear research questions are elucidated when they propose the data elements. Meanwhile, we are all aware of “research” that pins differences in student success on modality while overlooking differences in the population served. And in the long list of items the Department suggests, the necessary demographics are missing. We are worried that the Department might erroneously make a correlation equals causation argument regarding student success in distance education. As if to validate our concerns, in this NPRM the Department cites research of COVID courses, which is not generalizable to all distance education. There is so much wrong with this approach. Watch for more from us on this issue.
The Department punted on any cost analysis, but it will likely be significant. When the Department cites its cost calculations for the package, it would be nice if it acknowledged the huge missing asterisk of the cost information that is not collected for this data proposal.
Finally, the proposal falls short of its own goals. If they want to make the comparisons between distance and on-campus students that they are touting, then they need information on ALL students.
It’s critical that we respond as a community to help the department understand how these regulations will impact students and institutions. How can you get involved? Comment! Institutional personnel, program personnel, or individuals may comment during the 30-day public comment period.
If you wish to comment as an institution or program, you should work with your institution’s government relations office. But you don’t have to comment as an official representative of your institution; you can comment as a private citizen.
Each NPRM announcement provides directions on how to comment in the Summary section of each notice. You are directed to submit comments via the Federal eRulemaking Portal at regulations.gov. At regulations.gov under FAQ, you will find the instructions for finding a rule on the site and submitting comments. Please note that the Department will not accept comments by fax, email, or submission after the comment period ends. You are advised to include the Docket ID (that will come in the Federal Register version, and we will update this post when it is published) at the top of the comments and submit your comments or attachments in Microsoft Word format.
Comments can come from institutions/organizations or individuals. Official comments from an institution or organization are important, but be sure that you have the approval of the President or whomever has authority. We do not want you to lose your job. You can also comment as an individual. You can state your place of employment and expertise but be clear that it is your own opinion.
Here is your opportunity to ask clarifying questions, show support for the language, express challenges that could have unintentional consequences on students or your institution, suggest alternatives (they like that), or raise other concerns.
As previously shared, the comment period will end 30 days after the official release of the NPRM, approximately August 21st (we will update this post with the official date once it is released in the Federal Register). The Department must review and respond to the submitted comments. The announcement of the final regulations will include the Department’s response to the comments in the preamble of the Federal Register announcement. Final regulations that are released by November 1, 2024, will be effective July 1, 2025.
Watch for more from WCET and the State Authorization Network.
Post authored by Cheryl Dowd, Van Davis, and Russ Poulin
