Last Chance to Shape 2024 Distance Education Federal Regulations – Join the Rulemaking Process Now!

There is one last chance for you to participate in the rulemaking process for the recently released distance education-related regulations to inform the U.S. Department of Education (Department) of any concerns prior to the Department issuing the final regulations.

We maintain, as discussed in our July WCET Frontiers Post and our public comment, that the regulations as proposed will have a serious impact on the delivery of distance education at your institution.

We encourage institutions and members of the public to participate in an Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget review by asking for an Executive Order (EO) 12866 meeting. This EO 12866 meeting is the final opportunity for the higher education community to be heard about rulemaking concerns. The Office of Management and Budget (OMB) is the Executive Office of the President directed to provide a review of the draft regulations. The OMB directs its OIRA division to facilitate this review. However, these meetings are not the same as public comments and are limited to “actions that are likely to have large impacts on the economy,” “ensure consistency in regulatory approaches across Federal agencies,” and “to ensure that regulatory actions are effective and durable.”

Timing is Critical! – How to Request an EO 12866 Meeting

There is a race against the clock to complete the review if the Department wants to release the final rules by November 1 so that the rules can be effective July 1, 2025. In recent years, an OIRA review of Title IV-related regulations has been completed in 3-4 weeks. You will need to act quickly. We will share how!

We urge you to begin preparing for an EO 12866 meeting now. The economic impact of the proposed regulations is unprecedented. Today, we will share information about the purpose and opportunity to request an EO 12866 meeting. Additionally, we will provide insights about common themes found in public comments during the recent public comment period.

Our intention in this post is to ensure that everyone knows how to request a meeting and how to access and review the public comments that were submitted. To be fully informed, you may wish to peruse other public comments for additional points of view. These meetings are available to everyone, not just a few organizations.

Generally, once regulations are released as final, they cannot be changed without going through a new rulemaking or cannot be vacated without a court challenge. We urge public participation in the OIRA review by requesting an EO 12866 meeting to inform this Executive Branch review.

Executive Order 12866 – OIRA Review & Meeting Opportunity

By Executive Order in 1993, President Clinton directed the Federal Government to begin a program to reform the regulatory process and make it more efficient. Executive Order 12866 includes regulatory philosophy, principles of regulation, and directs the organization of executive office entities to ensure efficient regulatory planning and review process. The OMB is assigned the responsibility to implement the review of agency rulemaking. Within the OMB, the OIRA was directed to conduct the review function and provide guidance to the rulemaking agency. That agency is expected to revise the regulatory package to address OMB/OIRA concerns and respond to any interagency review comments. The purpose of the review is to ensure that regulations are consistent with:

• Applicable law,
• Presidential priorities,
• Principles as set forth in this Executive Order,
• Not in conflict with policies or actions of another agency.

The public may participate by requesting an EO 12866 Meeting to express their opinions as part of the OIRA review. This is not a complicated process. Key considerations are as follows:

How does one follow or ask for an EO12866 Meeting?

• Submit for an EO12866 Meeting AFTER the rules are posted on the OIRA/OMB website for review.
  • Watch the OIRA/OMB website to learn when rules have been sent for review.Look for SAN and WCET to send an update in MIX.
  • This WCET Frontiers post will be updated when the rules are submitted.
• Note the various drop-down tabs on the OIRA/OMB website and click on Regulatory Review.
• Under the Regulatory Review drop-down choose Regulatory Review Dashboard.
• Choose the agency you wish to review.
• After finding the rule, schedule a meeting by clicking the Request EO Meeting hyperlink.
• Complete the form provided.
• You will receive an email notice that your requested meeting has been scheduled and information to share documents for your meeting if you choose to.
• You must confirm the meeting within two business days of the email.
• Please DO NOT BE A NO SHOW!

What will the EO12866 Meeting be like (based on recent experiences)?

1. You will receive a second email indicating a “teleconference” and the phone number to use.
2. The meeting is for 30 minutes.
3. The meeting is “typically” a listening session.
4. A panel on the call will include several staff members from OMB and OIRA and at least one representative from the agency developing the regulations (for our purposes, that is the U.S. Department of Education).
5. You will be introduced and given the floor to speak for the allotted time.
6. The panel often does not ask questions, but be prepared just in case.

How should one prepare for the EO 12866 Meeting?

• Given the limited time, be intentional about choosing your key regulatory issues of importance.
• Review the Federal Register announcement of the Notice of Proposed Rulemaking (NPRM) for the Authority for This Regulatory Action and the Regulatory Impact Analysis.  A review of these sections will help you to determine if your opinion is consistent or contrary to the Department’s explanation of meeting its statutory authority to regulate and the need for regulatory action.
• For each regulatory issue, succinctly share two or three well-considered evidence-based (data or primary authority) points such as:
  • The actual cost and paperwork burden conflicts with ED’s reported estimates.
  • Conflict with Executive Branch priorities.
  • Issues of Federalism (Impeding upon state oversight due to the 10^th Amendment).
  • Lack of statutory authority to regulate the issue.
  • Conflict with other regulations – inconsistent, incompatible, duplicative.
  • Lacking clarity of language to implement the regulation thus raising concerns of uncertainty and impossibility of compliance.

What if you do not have the authority to speak on behalf of your institution/organization?

1. Like public comments, if you do not have the authority to speak on behalf of your institution/organization, do not give that impression. You do have the right to request a meeting as a private citizen.
2. The meeting request form does include “Requestor’s Organization,” which is not a required field.
3. It is best if you share that you are a member of the public who works at an institution/organization that would be affected or for which the students would be affected and are sharing points for consideration prior to the finalization of the agency’s regulations.

Why should you request an EO 12866 Meeting?

This is the final opportunity for the public to provide input on the development of regulations. This package of proposed regulations will have a deep impact on distance education and the students it serves. In our opinion, the impact and cost of compliance seem to be underestimated.

As previously mentioned, typically, regulations released as final cannot be changed without a new rulemaking or cannot be vacated without a court challenge. Yes, there are paths to blocking a regulation (e.g., Congress defunding enforcement or the Congressional Review Act), but those are less likely to occur. More on that later. Therefore, we encourage those with final thoughts on these regulatory issues to participate in the process by sharing their information in an EO 12866 meeting to inform the OIRA review before the draft is sent back to the Department to finalize and release the final regulations.

Review of the Public Comments for Proposed Regulations for Distance Education and Return to Title IV (R2T4)

As with previous sets of proposed rules for which we participated in the public comment period, WCET and SAN are in full support of the intent of the Department to provide student protection and protect the integrity of the Title IV Federal aid programs. Our goal in providing public comments or providing testimony for an EO 12866 Meeting is to inform the Department of concerns about the detrimental impact as raised by our member practitioners. We seek to avoid the tilt in the regulatory balance that will ultimately cause more harm to students when attempting to address the problem raised by the Department. We also believe that, unlike any other set of proposed regulations in our experience, these rules will impact institutions economically in a way that has been overwhelmingly underestimated in the Department’s analysis.

The Regulations.gov website page for submitting public comments for the Program Integrity and Institutional Qualityregulations indicates that 454 public comments were submitted during the comment period. It is noted on this website that agencies do not publicly post all comments received. A bulk data download link is available at the bottom of the webpage.

We appreciated reviewing the public comments. Public comments provide the opportunity to inform the Department about opinions, actual experience and data with the issue, and to ask questions. There were a few organizations that provided public comments that supported the Department’s regulations and the public policy reasoning behind the regulations as shared by the Department. However, we found that many institutions and organizations representing institutions shared common themes based on their practical experience at institutions serving students.

Practitioners in the field shared the implementation frustration with many of these regulations. We noted that many comments corresponded very closely to the comments summarized in the recent Inside Higher Ed Post:  Universities Hit Back Against Proposed Online Attendance Policy. 

Common themes found in the comments include the following key concerns with the proposed regulations:

• Underestimation of costs for attendance taking for distance education courses.
• At the expense of many principled institutions, there is over-regulation of institutions to address the few unscrupulous institutions, for which enforcement of current regulations would be prudent.
• Concern that these proposed regulations are directed specifically at distance education rather than all modalities, and this shows a distinct bias against distance education and the lack of understanding of the variation of uses and interconnection of modalities currently used by faculty and students at institutions.
• Concern about ambiguous language in regulation.
  • The proposed regulation does not define “attendance taking” in the regulatory language of 34 CFR 668.22(b)(3)(ii).
  • Proposed regulation 34 CFR 600.2 definition of “virtual location” does not specify one virtual location for all academic programs that are 100% by distance education or separate virtual locations for each program.
• Concern that the proposed language for the 34 CFR 600.2 definition of “virtual location” will entail state and accreditor approval as well as an update to the program participation agreement.
• Concern that the NPRM preamble language referring to the elimination of asynchronous instruction for clock-hour programs can be misinterpreted as the language does not indicate that the elimination is limited to only those programs offered by distance education.
• Conflict with the 2020 preamble to distance education regulations.

Some public comments requested guidance in the preamble of the final regulations to clarify regulatory language. However, because the preamble has no legal effect, we encourage the Department to prepare unambiguous regulations that rely on the text of the language. We know that administrations may choose to follow previous guidance or not.

Specific to these proposed distance education regulations, we saw the Department reverse guidance from the 2020 preamble analysis as the Department has no legal obligation to follow the previous guidance.

We hope that the public comments as well as input received during the OIRA review will help the Department revise the regulations to include clear direction in regulation.

If you wish to review the comments on your own, you may download the released comments individually under the All Comments on the Docket tab, or in Bulk Data Download at the link at the bottom of the webpage.

Next Steps

WCET and SAN will provide notification through our online communications platform, MIX, and in an update to this blog post when the final draft rules are sent to OMB for review. We encourage you to participate in this last step of the rulemaking process if you have remaining issues and concerns about these distance education-related regulations.

As we shared, the process is not difficult and was created so that the public could be involved. The Administrative Procedures Act (APA) rulemaking process is based on core elements of transparency to provide notice and opportunity for public comment. Additionally, to complement the elements of the APA, Executive Order 12866 was issued to make the regulatory process more efficient.

The public should not consider this process a mystery and should share applicable direction to the Department. This will help ensure that the view of practitioners in the field will help inform practical and balanced rules. This is important since we share common goals of student protection, student access, and protection of the Federal financial aid structure.

Please continue to follow SAN and WCET as we navigate an EO 12866 meeting ourselves and continue to follow the rulemaking issues that were addressed in the Winter 2024 negotiated rulemaking meetings. We will keep you updated!

Post written by Cheryl Dowd, Van Davis, and Russ Poulin