On April 2, 2020, the Department of Education (“Department”) published long awaited proposed rules for distance education. The Notice of Proposed Rule Making (“NPRM”) follows on last year’s rulemaking process. The NPRM’s issuance is more than timely, as schools now seek to transition to 100% online delivery in response to the COVID-19 pandemic.
Broadly speaking, the proposed regulations aim to remove barriers to offering competency-based education and seek to create more flexibility for institutions to innovate new ways to deliver education. Department regulations currently presume that students will be in physical classrooms, which limits the possibilities of internet-based learning. To reflect consistent advances in technology, the Department proposes to change its rules to allow progress to be measured by demonstration of learning and participation as opposed to just seat time.
For example, the regulations governing the determination of the withdrawal date for R2T4 purposes are focused on “academic attendance,” which is largely based on actual attendance in a classroom or other school activity. Reflecting the new reality of internet-based learning, the Department proposes adding the new term, “Academic Engagement.” “Academic engagement,” permits schools to use participation in interactive online academic activities as a new basis for R2T4 calculations. Institutions should be cautioned that merely logging in into a computer-based program does not qualify as “academic engagement.” Participation must involve the opportunity for substantive interaction.
The definition of “Distance Education” was also updated to remove references to specific media types. This will allow institutions to use new technologies as they become available in delivering education. As part of its efforts to promote innovation and flexibility, the Department also proposes to leave it mostly to accreditors to determine the appropriate qualifications for instructors in distance education programs.
The new definition also outlines the requirements for “substantive student interaction.” An important point raised by the Department in the NPRM is that substantive student interaction must be associated with teaching and learning as opposed to mere administrative check ins. But instead of creating one-size-fits-all requirements for the frequency of interactions between students and instructors, the Department seeks to require opportunities for substantive interaction on a “predictable and regular basis commensurate with the length of time and the amount of content in the course or competency.”
The Department further opens the door for innovation in delivery of education by broadening the definitions of “credit hour” and “clock hour” to delegate to accreditors how best to measure student learning. The Department proposes adding the term, “clock hour in a distance education program,” which requires institutions to be technologically capable of monitoring 50 out of 60 minutes of online time to count as a clock hour in a distance education program. Otherwise, it is left to the accreditors to further clarify how a clock hour is to be counted in a distance education program.
The definition of “credit hour” has also been broadened to allow accreditors more of a say in creating requirements. The Department’s intent is to By allow accreditors to focus on student learning rather than seat time, giving institutions greater flexibility for innovation of delivery models. However, the Department has indicated that consistency across institutions is still important in the time requirements associated with a credit hour. In response to comments from the rule-making committee, the Department signaled that it may no longer be appropriate to treat laboratory and lecture classes differently when assigning credit.
The Department also seeks to ease restrictions on institutions ability to form partnerships to facilitate innovation by increasing flexibility to partner with entities that provide critical workforce training. Under the proposed regulations, institutions would be able to enter arrangements with organizations not eligible for Title IV to provide up to 50% of an educational program.
Further, the Department proposes easing it approval requirements to remove barriers towards offering distance education programs. The proposed regulations provide that an institution only has to obtain Department approval for its first direct assessment program at each level (e.g., master, bachelors, etc.). The Department reasons that if an institution is administratively capable of providing one direct assessment program, it would likely be able to provide more. The Department goes further by committing the Secretary to take prompt action on a materially complete application for a new program. These changes turn over to accreditors the main oversight responsibilities for such programs.
Comments on the proposed regulations are due by May 4, 2020. The final regulations must be published by November 1, 2020 to be effective July 1, 2021.