Neg Reg Subcommittee on Distance Education Grapples With ED’s Proposed Definitions

By Joelle Fredman, NASFAA Staff Reporter

A subcommittee of higher education experts kicked off a two-day session, part of the Department of Education’s (ED) negotiated rulemaking or “neg reg” process, Thursday to discuss regulations related to distance learning and educational innovation. During the session—which was livestreamed but not open to the public to attend in person—negotiators debated a series of new definitions that ED proposed in an effort to inform the discussion from the larger neg reg committee around rewriting regulations related to accreditation and innovation.

ED convened the subcommittee after hearing from higher education stakeholders that its proposal to rewrite a host of regulations related to Title IV issues in one neg reg session was too ambitious. This subcommittee will present its findings to the larger committee—which spent the earlier part of the week debating accreditation issues—either after its second meeting February 12-13, or final meeting March 11-12. Two other subcommittees on TEACH Grants and faith-based entities occurred simultaneously. Stay tuned to Today’s News Tuesday for full coverage of both of the sessions on TEACH Grants.  

While making their way through the list of new definitions ED proposed— which ranged from changes to the clock hour to correspondence courses—the negotiators took issue with language related to expanding the geographic scope of accrediting agencies. Specifically, ED proposed to add language into the regulation specifying that multiple accreditors can oversee institutions in the “same or a similar geographic area in another accreditor’s scope.” While ED explained that this is currently allowed, and that it only sought to add in this language to clarify that this is the case for accreditors, many negotiators around the table were concerned that the language would result in institutions “shopping around” for accreditors with lax requirements or those cheapest to comply with. ED argued, however, that this language was meant to “encourage competition” and “increase access,” and that it would not likely entertain striking this language.   

Negotiators also discussed ED’s proposed language to create a definition for the clock hour for distance education programs, which included requiring institutions to monitor students’ engagement with the material for 50 minutes out of the 60-minute course. Negotiators around the table, however, were concerned about the practicality of online monitoring. ED said it was open to hearing about how this can be accomplished, and offered examples such as tracking students’ keystrokes during online sessions. For example, Merodie Hancock of Thomas Edison University, representing public institutions, was concerned how this would apply to special populations, such as inmates, who cannot be tracked online for privacy reasons.

In addition, many negotiators around the table took issue with ED’s proposal to strike the current definition for the credit hour and instead allow institutions to define it on their own, subject to approval by their accrediting agency. Effective since July 2011, ED defined the credit hour as "an amount of work represented in intended learning outcomes and verified by evidence of student achievement that is an institutionally established equivalency that reasonably approximates not less than –

       (1) One hour of classroom or direct faculty instruction and a minimum of two hours of out of class student work each week for approximately fifteen weeks for one semester or trimester hour of credit, or ten to twelve weeks for one quarter hour of credit, or the equivalent amount of work over a different amount of time; or

       (2) At least an equivalent amount of work as required in paragraph (1) of this definition for other academic activities as established by the institution including laboratory work, internships, practica, studio work, and other academic work leading to the award of credit hours."

Many negotiators around the table opted to keep the current definition. Jessica Ranucci of the New York Legal Assistance Group, for example, warned that this revision “would open the door to fraud,” and questioned why ED would be looking to make this change despite the fact that only two institutions have been found to be out of compliance with credit hour regulations since 2011. While ED responded that it did not find significant issues with the current definition for the credit hour, it has heard from schools that “it is somewhat inhibitive.”

Negotiators also voted to strike a proposed provision from ED that an agency maintain an institution’s pre-accreditation status that it is seeking to revoke for at least the end of the term that is underway at the time and up to one additional term. ED said this was being added to protect students, however negotiators around the table expressed concerns that this provision would lead students to take on more debt at poorly-performing schools, and allow institutions to continue accepting federal funds despite failing to comply with accreditation standards.

During a discussion around the definition of distance education and “regular and substantive interaction,” negotiators were concerned with ED’s definition of “regular” as “at least once per week for a non-term program and at least equal to the number of weeks in the term for a term-based program,” to which an accreditor can add required time. Some negotiators said they were nervous to grant flexibility to accreditors, and others argued that this definition may cause issues for nontraditional students and those in competency-based learning programs who do not meet with instructors once a week. Negotiators also debated proposed language that defined “substantive” as an interaction with “instructors or members of instructional teams.” According to the proposed language, accrediting agencies must define “members of instructional teams,” and some negotiators were again concerned about granting agencies such flexibility.

ED also proposed in its draft language striking the definition of the state authorization reciprocity agreement (SARA), which is an agreement among member states and districts to establish and adhere to comparable standards for distance education courses. ED published final rules related to state authorization of distance education in December 2016, which were set to go into effect July 1, 2018. The May announcement in which ED hinted that it would be rewriting this slew of higher education regulations, however, officially delayed the effective date for two years. In a brief discussion on this topic, which ED said it will pick back up tomorrow, some negotiators argued that the former definition was overly burdensome for schools, while others supported reviving it. Sue Huppert of Des Moines University, representing non-profit organizations supporting inter-state agreements, emphasized that states would be harmed if this provision was eliminated, as it ensures that states know that those operating within their borders are subject to some kind of oversight.

Negotiators will meet again tomorrow, which will mark the conclusion of this first session of subcommittee meetings.

 

Publication Date: 1/18/2019


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