Negotiated Rulemaking: Accreditation, Student Identity Verification, Student Disclosures, and Other Proposed Regulations

This is the fourth and final post in our blog post series on the results of the U.S. Department of Education’s negotiated rulemaking process. You may recall that there were many issues covered by the negotiated rulemaking committee and to our pleasant surprise, consensus was reached. With so many issues, we divided our review of negotiated rulemaking in four sections. The first blog post focused on an overview of the rulemaking process, the issues, and the next steps. The second blog post covered regulations related to state authorization. The third blog post focused on the definition of the complex concept, regular and substantive interaction.

Our final post includes an analysis of some remaining issues of importance to institutions and organizations working in the world of educational technologies in higher education. We are pleased to have a guest contributor to today’s post. Our good WCET colleague, Leah Matthews, Executive Director of the Distance Education Accrediting Commission (DEAC), was a member of the Distance Education and Educational Innovation Subcommittee in this 2019 negotiated rulemaking session along with Russ Poulin. She shares her view of the committee discussions and ultimate decisions about the issues related to accreditation. In addition to accreditation, you will see our examination of issues such as written arrangements, disclosures, the definition of “academic engagement,” plus more!

If you want the quick version, jump down to our Observations and the Bottom Line section at the end.

Accreditation

Accreditation was a major topic of discussion during the negotiated rulemaking sessions. As the Department of Education works to adopt the consensus language and publish a Notice of Proposed Rulemaking for public comment on the approved regulations, here are some thoughts about some of the highlights within the consensus language that deal with accreditor scope and accreditation standards.

There are plenty of other changes to the operating procedures and substantive changes to procedures that all accreditors must have, such as requiring arbitration of accreditation decisions prior to going to court; changing provisions for respect of religious mission; adding substantial compliance as a USED finding; simplifying substantive change provisions; and making it easier for new accreditor to gain recognition, but let’s save these topics for another blog post! For now, let’s look at the following areas of the consensus language found in Subsection 602.16 and 602.18:

• Direct Assessment. Direct assessment is an alternative pathway to federal recognition for an institution to be eligible to disburse financial aid. An accreditor would need to seek the inclusion of direct assessment within its scope of recognition and show that its standards effectively address the quality of an institution’s direct assessment educational programs. (Subsection 602.16 (c)(1) Currently, institutions approved to offer direct assessment programs are approved to do so by their accreditors through the USED’s experimental sites initiative for direct assessment programs. Currently, there are just a few institutions approved to award federal financial aid for direct assessment programs. Allowing for the formal inclusion of direct assessment into an accreditor’s scope of recognition signals that USED is ready to transition federal financial aid approval for direct assessment programs from the experimental sites initiative to any institution that meets an accreditor’s standards for direct assessment – so long as the accreditor undergoes a process to expand its scope. This would entail a special application to USED staff for approval along with review by NACIQI (the board that oversees accrediting agencies) for approval of the expansion of scope. It will be interesting to observe how many institutional accreditors move to apply for an expansion of scope once the rules are in place July 1, 2020.
• Business and Industry Input. The USED and negotiators went a long way toward including feedback from industry advisory boards within accreditation standards for the review and approval of curriculum and new programs. Subsection 602.16 (g)(3) calls for accreditors to have separate standards, whereby programs would more effectively meet the recommendations of widely recognized industry standards and organizations; credentialing or other occupational registration or licensure; or employers in a given field or occupation in making hiring decisions.  This language represents a more deliberate effort to build bridges between the largely autonomous accreditor-institution relationship and the business and industry community, an area given significant emphasis by Secretary Betsy Devos.

• Student Identity Verification. Authenticating student identity and verifying that a student is completing the work required for a distance education credential has long been an area of contention and scrutiny. The consensus language for accreditors in this area is simplified considerably. Under current regulations, accreditors are required to secure evidence of effective practice in the form of a secure login and pass code; proctored exam; or other technologies and practices that are effective in verifying student identity. The revision calls for accreditors to require institutions to have processes in place through which the institution establishes that the student who registers in any course offered via distance education or correspondence is the same student who academically engages in the course or program. Securing evidence of robust student identity verification practices needs to remain a key feature of distance education quality assurance. Evidence of effective student identity verification supports evidence of student achievement. (See additional comments in the last section below).

• Flexibility. A lengthy re-write of Subsection 602.18, ensuring consistency in decision-making, allows for greater flexibility by accreditors to establish and apply alternative standards, policies, and procedures and take into consideration innovative program delivery approaches or, when an undue hardship on students occurs, applying equivalent written standards policies and procedures. Such flexibility could be very positive for students, especially those affected by a closing institution or a catastrophic event that impacts an institution’s operations. A revision that piques my interest is the language under this section that allows for flexibility when “instructors who do not meet the agency’s typical faculty standards, but who are otherwise qualified by education or work experience, to teach courses within a dual or concurrent enrollment program.” (Subsection 602.18 (c)(1)(vi)) Accreditation standards for faculty qualifications are typically rigid and firmly fixed as requirements that institutions must meet. Faculty qualifications are integral to the assessment of education quality. As this language moves forward, accreditors will need to work hard at the delicate balance between assuring quality education and innovation that allows flexibility in the application of the standard.

Distance Education Disclosures 

Consensus in negotiated rulemaking morphed the delayed 2016 Federal Regulation for distance education disclosures (34 CFR 668.50) into a regulation requiring professional licensure disclosures to ALL students regardless of modality (34 CFR 668.43 (a)(5)(v) and 34 CFR 668.43 (c)). See our previous post for more details on professional licensure.

At the start of the negotiated rulemaking process, the Department shared proposed language to begin the committee discussions on the variety of issues and regulations. The Department initially proposed to delete 34 CFR 668.50 that was subject to a delay of its effective date until July 1, 2020. Upon review of the delayed regulation, the Distance Learning and Educational Innovation Subcommittee determined that many of the disclosures required in this section were already required by other currently effective Federal regulations (ex. Complaints: 34 CFR 668.43(b) & Refund Policies:  34 CFR 668.43 (a)(2)). An exception to duplicative regulations was a regulation requiring disclosures for programs leading to professional licensure. The subcommittee recommended that professional licensure disclosures be expanded to be provided for face-to-face students as well as distance education students.

Ultimately the consensus language causes the following:

• 34 CFR 668.50: [Reserved] Institutional disclosures for distance or correspondence programs.
  • This regulatory language is removed.
  • Most disclosures in this regulation continue to be required per other Federal regulations.
• New! 34 CFR 668.43(a)(5)(v): General Disclosure required for all current and prospective students in programs leading to professional licensure, regardless of modality; one of the following descriptions must apply:
  • Completion of the program will meet educational licensure requirements in a state for that occupation.
  • Completion of the program will not meet educational licensure requirements in a state for that occupation.
  • Program personnel has not made a determination regarding requirements.
• New! 34 CFR 668.43(c): Direct disclosure is required specifically to each affected student if:
  • The institution determines that the completion of the program will not meet educational licensure requirements in a state where the student is located.
  • The institution has not made a determination whether completion of the program meets education licensure requirements in a state that the student is located.

Definition of “Academic Engagement”

“Academic Engagement” is a concept that appeared in slightly varying forms previously in the regulations. Rather than having to redefine it in several places (with possible variations), the Distance Learning and Innovation subcommittee suggested that the term be defined.

In 34 CFR 600.2, “academic engagement” would require “active participation by a student in an instructional activity related to the student’s course of study that…is defined by the institution in accordance with any applicable requirements of its State or accrediting agency.” Furthermore, the definition includes a list of activities that meet the criteria, including:

• attending synchronous class, recitation, field, or laboratory activity, where there is an opportunity for interaction between the instructor and students;
• submitting an academic assignment;
• taking an assessment or exam; participating in an interactive tutorial, webinar, or other interactive computer-assisted instruction; or
• interacting with the instructor about academic matters.

One of the main ways that this definition affects our community is that the idea of academic engagement has been used in the determination of the “last date of attendance.” If a distance education student drops out of college, that student is eligible for aid only up to the last day the student was engaged in academic activities. If the student formally withdraws, this is usually easy to calculate. If not, evidence of the last day of academic engagement is used.

Finally, it is interesting to note some changes from previous iterations (see Financial Aid Handbook, Chapter 2, p. 21) that are friendly to technology-enhanced courses. The word “opportunity” is an important addition as the argument for interaction in a 500 student in-person class was that they had the “opportunity” to interact with the instructor. Of course, distance education instructors tend to use a higher standard than that. Also, note the inclusion of “computer-assisted instruction” as being recognized as an academic engagement.

Calculating the Percentage of Correspondence Students

Institutions are limited in the percentage of correspondence activity that is eligible for federal financial aid. The institution would no longer be eligible to grant aid if:

• More than 50 percent of the institution’s courses were correspondence;
• Fifty percent or more of the institution’s regular enrolled students were enrolled in correspondence courses;

For the second criterion, it was not clear in the past when a student is considered to be enrolled in a correspondence course. New language in Chapter 34, 600.7(2) clarifies that it will be when “the student’s enrollment in correspondence courses constituted more than 50 percent of the courses in which the student enrolled during an award year.” This clarification will be helpful as more institutions explore innovations that could be considered correspondence courses by an auditor.

Written Arrangements

The essence of a regulation to manage written arrangements is to place parameters on an accredited institution’s delegation of program development to another entity to develop an academic program for the accredited institution. The Department of Education, in an effort to increase innovation, initially proposed to expand the current limitation of an academic program that could be developed by a non-accredited entity for an institution to 100% of an academic program. The Distance Learning and Educational Innovation Subcommittee raised concerns to the main committee about oversight of the non-accredited entity and did not recommend an expansion of the amount of an academic program to be developed. Consensus in the main committee determined that an accredited entity may provide more than 50% of an academic program for an accredited institution. However, an expansion of the current 50% limit of an academic program provided by a non-accredited entity was not adopted.

Observations and The Bottom Line

Our major takeaways on this amalgam of regulations:

• There are several changes to accrediting operating procedures and substantive changes procedures. Institutions will have to watch for how these changes will affect them.
• Monitoring student identity verification to deter cheats and maintain academic integrity is a challenge which we all must conquer. The language is simplified, and we will have to see how the accrediting agencies implement it. However, don’t get fooled by vendors. We have already heard from members who have had proctoring software vendors use this change as a scare tactic to sell their product.
• Accreditors will have more flexibility to deal with innovations or unexpected occurrences at a campus. It will be interesting to see if and how they use it.
• Professional licensure disclosures are proposed for all students in such programs whether the program is at a distance or not.
• While the section on distance education student disclosures is removed, most every requirement in the old language remains as it was already elsewhere in regulation.
• The definition of “academic engagement” is welcomed as it creates one definition that can be used throughout the regulations. It also has some improvements that can assist when institutions have to determine a student’s last date of attendance for federal financial aid reimbursement purposes.
• A definition for calculating the percentage of correspondence students addressed an ambiguity that could affect institutions with large-scale innovations that might not meet all the requirements of a distance course.
• Written arrangements allow an institution to partner with a non-accredited provider to offer all or part of an academic program. While this was a controversial issue in negotiations, in the end little has changed.

Remember that these are still proposed. We are expecting the regulations to be released for public comment by the Department of Education soon. Based on those comments, any final regulations published by the end of October will go into effect July 1, 2020.

Cheryl Dowd
Director — WCET State Authorization Network
WCET — The WICHE Cooperative for Educational Technologies
cdowd@wiche.edu

 

 

Russ Poulin
Senior Director – Policy, Analysis, and Strategic Alliances
WCET – the WICHE Cooperative for Educational Technologies
rpoulin@wiche.edu @russpoulin

 

 

 

 

---