Washington Watch: ED’s proposed rules on ‘innovation’

The U.S. Education Department (ED) last week released a Notice of Proposed Rulemaking (NPRM) on distance education, the credit hour, competency-based education and other items falling under the general category of “innovation.”   

The rules fall more on the academic side of the house more than most federal student financial aid policies. The regulations are a top priority for Under Secretary of Education Diane Auer Jones. The public was given 32 days to comment on the NPRM, a shorter period than would be typical for an item of this importance.

In releasing the regulations, Education Secretary Betsy DeVos stated that “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.” She added that colleges are acting “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. It’s past time we rethink higher ed to meet the needs of all students.”

Despite the fact that the regulations were announced within the context of the coronavirus pandemic and the lightning-speed conversion to online education across higher education, the rules were, in fact, agreed to through the formal negotiated rulemaking process that concluded in April 2019.  In that “negreg” effort, community colleges were represented by Christina Amato, director of eLearning at Sinclair Community College (Ohio), and Daniel Phelan, president of Jackson College (Michigan). 

Because the negotiated rulemaking committee had reached consensus, ED was required to publish an NPRM that reflected that agreement. The department has already finalized regulations on accreditation that were part of the negotiated rulemaking sessions.  

Some key areas addressed by the NPRM addresses include:

  • Online teaching, where a new regulatory definition of “regular and substantive interaction” between an instructor and a student is delineated in detail. The American Association of Community Colleges had advocated for greater regulatory clarity in this area and this change should generally prove beneficial in ensuring Title IV compliance, but some have questioned whether the definition of “regular” might complicate the delivery of some competency-based education programs. The definition of “distance education” is also altered.
  • Direct assessment, where institutions with strong compliance records would only need to receive approval from ED for the first such program offered by the school. Additional direct assessment programs would need only be approved by accreditors.  
  • A requirement that institutions report to ED if they develop a written arrangement for an institution or organization that is not eligible to participate in the Title IV, Higher Education Act program but that provides more than 25 percent, but no more than 50 percent, of a program. In its initial proposals in this area, ED wanted non-Title IV providers to be able to offer a larger percentage of a program, but this met with resistance from most non-federal negotiators.  
  • A requirement that ED must act promptly on applications by institutions to the secretary seeking certification or recertification to participate as an eligible institution in Title IV of HEA. Delays in this area, including the processing of updated “program participation agreements” have been a particular concern of community colleges, given the frequency which they add new programs. 
  • Clock-to-credit hour conversions are simplified. This would apply to many short-term, technical programs offered by community colleges.

Assuming ED sticks to its regulatory schedule, these rules will become final by November 1, and take effect July 1, 2021.

About the Author

David Baime
is senior vice president for government relations and policy analysis at the American Association of Community Colleges.