Neg Reg: Stakeholders Reconvene to Discuss Distance Education Regulations

By Joelle Fredman, NASFAA Staff Reporter

The Department of Education (ED) reconvened a subcommittee of higher education experts for two days this week to continue a discussion from last month around regulations related to distance learning and educational innovation, as part of its negotiated rulemaking or “neg reg” process. During the sessions—which were livestreamed Tuesday and Wednesday but not open to the public to attend in person—negotiators debated proposed changes to a slew of topics such as state reciprocity agreements, the return of Title IV funds (R2T4), and satisfactory academic progress (SAP).    

Two other subcommittees on the Teacher Education Assistance for College and Higher Education (TEACH) Grant program and faith-based entities occurred simultaneously. The issues that these subcommittees tackle will ideally inform the discussion of the larger neg reg committee around rewriting regulations related to accreditation and innovation, which will meet for its second session February 19-22. Stay tuned to Today’s News for coverage of those discussions.

ED kicked off this session by revisiting a debate from January around whether accrediting agencies should have the authority to define, within distance education, the meanings of “instructional teams” and “regular and substantive interaction.” ED said that because last month negotiators said they were concerned that charging agencies with this responsibility would lead to a lack of standardization, it was proposing new language to define the terms itself—an idea which the committee supported.

In January, negotiators said they were concerned with proposed language in the regulations that defined “substantive” as an interaction with “instructors or members of instructional teams,” due to the vagueness of what would make up a team. On Tuesday, ED proposed to define “instructional team” as a group including a subject matter expert based on “academic credentials or work experience,” though this continued to concern some negotiators due to the uncertainty of what work experience would deem someone an expert.

ED on Wednesday presented the group with new language that defined a “subject matter expert” as someone who has either certain credentials or credentials and/or work experience, as well as one “who has the primary responsibility for contact with students regarding subject matter expertise.” Negotiators, however, continued to express concern with this definition. For example, a few argued that this may be putting stricter guidelines on distance education programs over brick and mortar schools, where instructors in large lecture halls would not have much contact with individual students.

Negotiators also picked up on a discussion from January around the definition of reciprocity agreements for state authorization, which ED proposed last month to strike. 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.

ED on Tuesday offered language stipulating it would recognize a reciprocity agreement between two or more states if terms didn’t conflict with current state laws. Two negotiators—Sue Hupport of Des Moines University and Carolyn Fast of the Office of the New York State Attorney General—presented the group with alternative language on reciprocity agreements that specified that states could enforce their own consumer protection regulations and more general education regulations in addition to the terms of reciprocity agreements. On Wednesday ED proposed to add new language into the definition that an agreement must “not prevent the state from enforcing its laws or regulations of general applicability,” which negotiators did not appear to take issue with. The 2016 rules also specifically stated that an agreement does not satisfy the state authorization requirements if it prohibits “any state in the agreement from enforcing its own statutes and regulations, whether general or specifically directed at all or a subgroup of educational institutions.”

In addition to revisiting discussions from last session, ED also introduced new proposals to negotiators that would change distance education regulations. For example, ED proposed an additional model for disbursing Title IV aid to students in standard term or non-standard term direct assessment programs—which it dubbed “subscription-based” disbursement. Under this model, coursework “is not required to begin or end within a specific time frame in each term.” Instead, ED proposed that students in these programs “must complete a cumulative number of credit hours (or the equivalent) during or following the end of each term before receiving subsequent disbursements of Title IV, HEA program funds.” According to ED, this new model would allow students to “vary enrollment every period,” giving students “more options to decide how much they want to work,” as long as they complete their cumulative credit hours before they wish to receive their next aid disbursement. A few negotiators around the table were concerned that this model would actually confuse students regarding what they need to complete to receive their aid disbursements.  

ED also brought the group proposed changes to the process of R2T4, which many institutions currently struggle to comply with due to its complexity. ED proposed that a student would not be considered to have withdrawn, for the purpose of returning federal funds, if he or she completed coursework earlier than the end of the term and graduated, or completed coursework in a module or modules “that include a number of days equal to or greater than 50 percent of the number of days in the payment period.” ED also proposed that for a non-term program, “a student is not considered to have withdrawn if the institution obtains written confirmation from the student at the time that would have been a withdrawal of the date that he or she will resume attendance, and that date is no later than 60 calendar days after the student ceased attendance.”

ED proposed an alternative way for institutions to determine if a student is meeting the quantitative standard of satisfactory academic progress (SAP). Currently, this is determined by “dividing the cumulative number of hours the student has successfully completed by the cumulative number of hours the student has attempted.” ED proposed that this can also be done “by determining the number of hours that the student should have completed at the evaluation point in order to complete the program within the maximum time frame,” which it said was done to provide institutions more flexibility. ED wrote that this additional option can also be used to determine SAP for students in programs utilizing its newly proposed subscription-based disbursement model. ED also proposed to add language that the required maximum time frame of no more than 150 percent of a program’s length can be measured in calendar time, and not just in credit hours.

Now that the second session of this subcommittee has concluded, a few designated negotiators will bring the group’s suggestions and ideas from their discussion—which ED agreed to help compile—to the larger committee meeting, which begins February 19. The subcommittee will also meet again for a final session March 11-12.


Publication Date: 2/14/2019

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