ED Kicks Off Final Negotiated Rulemaking Session On R2T4 and Distance Education

By Maria Carrasco, NASFAA Staff Reporter

The Department of Education (ED) on Monday started its final negotiated rulemaking session on program integrity and institutional quality, focusing on the return of Title IV funds (R2T4) and distance education. 

Negotiated rulemaking — known as neg reg — brings together stakeholders from various interested constituencies with the goal of reaching consensus on new or revised regulatory language. Negotiators began the session by discussing ED’s issue paper on R2T4

The first point of discussion was over ED’s added language about identifying the withdrawal date for a student who withdraws from an institution that is required to take attendance. 

The department proposed new language that an institution is required to take attendance for each course offered entirely through distance education except for dissertation research courses. This is different from last month’s session, where ED added language that an institution is required to take attendance if the institution offers a course entirely through distance education. 

Jillian Klein, a negotiator representing proprietary institutions of higher education, urged ED to include language excluding direct assessment programs from the attendance taking requirement. Klein pointed to ED’s Dear Colleague Letter (DCL) on direct assessment programs, which read, “unlike a CBE program measured in credit hours, a direct assessment program does not specify the level of educational activity a student is expected to engage in to complete the program.”

“It feels really at odds with the rationale that you just gave on behalf of the department for why these programs are not excluded from this requirement,” Klein said. 

Dave Musser, deputy director of policy implementation and oversight for ED, said the department believes the definition of academic engagement is broad and gives institutions discretion to what they consider to be academic engagement and what qualifies for attendance. He added that ED could respond to questions institutions have about what could and couldn't constitute attendance. 

JoEllen Price, representing financial aid administrators, asked ED what happens to institutions not required to take attendance if a student, who is in a combination of in-person and distance education classes, withdraws. Musser responded that the student would be treated as an in-person student if they took a combination of classes. Further, the attendance requirement is for students who enroll solely in distance education courses. 

ED then moved to take a consensus check on the issue paper. Klein was the only negotiator that objected to the language, and the committee did not reach consensus. 

The committee then moved to discuss ED’s issue paper on distance education. ED included a new definition of distance education course as “a course in which instruction takes place exclusively as described in the definition of distance education in this section notwithstanding in-person non-instructional requirements, including orientation, testing, academic support services, or residency experiences.”

Klein asked for a small change to move residency experiences to the front of the definition, which ED agreed to. Now, the definition reads “... notwithstanding residency experiences and in-person non-instructional requirements, including orientation, testing, or academic support services.”

The negotiators also worked to tweak language proposed by ED that required institutions to submit to the secretary of education a report regarding student enrollment in distance education or correspondence courses for each recipient of title IV aid. 

A big point of discussion between negotiators and the department was the removal of asynchronous courses from the definition of clock hour. ED proposed that the definition of a clock hour in a distance education program is “50 to 60 minutes in a 60-minute period of attendance in a synchronous class, lecture, or recitation where there is opportunity for direct interaction between the instructor and students.”

Musser said that the department did receive language from negotiators to limit the use of asynchronous clock hours to no more than 50% of a title IV eligible program. However, Musser said the department’s main concern is programs using less than that 50%. Further, Musser said the department has seen abuse of asynchronous clock hour programs. 

“Limiting it to 50% of a program doesn't alleviate the department's concerns about both abuse and the potential expansion of how the department is paying for instruction and clock hour programs,” Musser said. 

When the negotiators came back from their lunch break, some broke out into a caucus with the department for a further conversation about asynchronous clock hours. Musser reiterated the department's concerns of how it can ensure clock hours that are counted toward Title IV aid are  being monitored appropriately by the institution. 

“The larger issues of academic quality sort of blossom from that narrow concern, because a school is allowing students to earn clock hours simply by sitting, pushing a button, and watching some videos or not watching it,” Musser said. “Worst case scenario that calls into question the strength of the program and what the student is really gaining from that experience.”

Musser added that the department has heard concerns from negotiators about the removal of asynchronous clock hours and is open to language from negotiators with alternative guardrails. However, Musser said, the department would not want to enforce too many technical guardrails, since it could prove to be difficult. 

ED agreed to move the consensus check on distance education to Thursday this week, encouraging negotiators to submit new language for the department to review and possibly implement. The committee will finish this discussion on Thursday. 

For the last hour of Monday’s session the committee began to discuss ED’s issue paper on state authorization. The discussion will continue in Tuesday’s session, along with discussion on federal TRIO programs and cash management. 

Stay tuned to Today’s News for this week’s neg reg session. Those interested in watching the session can register on ED’s website


Publication Date: 3/5/2024

Peter G | 3/5/2024 1:4:39 PM

While it's good - to a point - that ED is giving institutions discretion over what constitutes academic engagement, it still is extra labor for faculty to have to monitor and track this on an ongoing basis. That has implications for curricular design, contracts, workload, etc.

I think the attendance topic is lacking faculty and curricular experts as the floor for this type of discussion. As case in point, the Department's position that "would be treated as an in-person student if they took a combination of classes" should have caused a freak-out but apparently was viewed as a concession. I don't think it is.

While that sounds reasonable on the surface, from a faculty perspective it means their obligations around a student can vary based on the student's other courses in a payment period. Student A is only enrolled in distance ED whereas student B is not, and the faculty has to know to treat them differently? Or, if on Tuesday Student B is enrolled in both F2F and distance ed, the faculty doesn't have to monitor attendance, but if on Wed they drop the F2F course the faculty is now obligated to monitor attendance?

That's obviously unworkable. ED's position here, I think as a practical matter, will likely end with all faculty teaching distance ed doing attendance for all students.

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