ED Publishes Proposed Regulations for Distance Education for Public Comment

By Joelle Fredman, NASFAA Staff Reporter 

As institutions across the country grapple with new online education options for students seeking to continue classes remotely, the Department of Education (ED) today published a Notice of Proposed Rulemaking (NPRM) to restructure regulations related to distance education. A negotiated rulemaking committee met last year to discuss the regulations and reached consensus, which is reflected in ED’s proposed rule. 

“With our support, colleges and universities were among the first to transition to online and distance learning so learning could continue during the coronavirus pandemic,” Education Secretary Betsy DeVos said in a statement. “Frankly, though, they are working within the confines of stale rules and regulations that are in desperate need of rethinking. We know there are fewer and fewer ‘traditional’ students in higher education, and this current crisis has made crystal clear the need for more innovation.”

Negotiations to rewrite distance education regulations kicked off in January 2019, when a subcommittee of higher education experts convened to discuss proposed language from ED before preparing a report of its recommendations for the larger negotiating committee. The larger committee was also tasked with tackling accreditation regulations, state authorization of distance education, and reviewing reports from other subcommittees on the Teacher Education Assistance for College and Higher Education (TEACH) Grant program and faith-based entities.

During the rulemaking sessions, negotiators spent a significant amount of time debating the definitions and difference between distance education and correspondence courses — which can have implications for institutions' eligibility for Title IV aid. Currently, institutions are not eligible for Title IV aid if more than 50% of their courses are correspondence courses, or if their regular student enrollment consists of more than 50% correspondence students, a term that is undefined in current regulations.

In the proposed rule, ED defines distance education as education that uses certain technology to allow for “regular and substantive interaction” between instructors and students, while a correspondence course is one in which institutions provide instructional materials to students, and where the interaction between instructors and students “is limited, is not regular and substantive, and is primarily initiated by the student.”

During the negotiated rulemaking sessions, the committee agreed that a student is considered to be enrolled in correspondence courses if they make up 50% or more of the classes the student is enrolled in during that award year, which is reflected in the proposed rule. 

ED also included a return of Title IV funds (R2T4) concept negotiators supported that would consider a student enrolled in modules not to have withdrawn if the student completes:

  • At least one module that includes 50% or more of the number of days in the payment period;

  • A combination of modules that when combined contain 50% or more of the number of days in the payment period; or

  • Completes coursework in a module or modules that is equal to or greater than the coursework required for the institution’s definition of a half-time student under 34 CFR 668.2 for the payment period.

ED will be accepting comments on the NPRM for 30 days, and wrote it will publish its final regulation — which may differ from its proposed rule due to comments submitted — before November 1, 2020 in which case the rule would go into effect on July 1, 2021. ED can also allow for early implementation, which would mean the final rules would be effective immediately upon publication.  

“It’s past time we rethink higher ed to meet the needs of all students. Fortunately, we started work last year to develop a new set of standards that are responsive to current realities, that embrace new technology, that open doors for much-needed innovation in higher education, and that expand access for students to the flexible, relevant education opportunities they need,” DeVos said. 

Public comments can be submitted through regulations.gov per the instructions provided in the NPRM. Please send a copy of your comments to NASFAA.


Publication Date: 4/2/2020

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