What's Next for Federal Innovation Rules?

The federal rule-making process can be confusing. Here are the answers to your pressing questions about how it might affect distance education and innovative programs.

March 13, 2019
 
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Raise your hand if the following sentence leaves you confused: this week the distance education subcommittee of the Department of Education’s negotiated rule-making panel met for the final time ahead of two more rounds of main committee meetings, which could lead to consensus on major changes to federal policy around accreditation and innovation.

“Inside Digital Learning” is here to help. We’ve been covering the convoluted process since it began in January (see sidebar below for all of our reports). We know firsthand how difficult it can be to separate what’s important and urgent from what’s simply noisy.

A few FAQs:

What’s happened so far? A main committee of experts has convened for two sessions to discuss a wide range of accreditation and innovation issues. Meanwhile, a subcommittee of experts on online learning has met for three sessions of two days each to focus on clarifying important but outdated or unclear terms in existing law -- among them, “distance education,” “regular and substantive interaction,” and “state authorization.”

What happens next? The distance education subcommittee has disbanded following Tuesday’s final meetings. Members were not expected to formally reach consensus, but rather will report summaries of their discussions during the main committee meeting in two weeks. Once the negotiated rule-making discussions wrap up, the department could set in motion a lengthy process to alter regulations based on the feedback from this year’s discussions.

Where do key distance education issues stand at this point? In a word: unresolved. Here’s the latest from this week’s meeting.

The 50 Percent Rule

Institutions receiving federal aid are currently prohibited from outsourcing more than 50 percent of an academic program to an unaccredited provider. The department in recent months has repeatedly floated the possibility of eliminating that rule in an effort to facilitate more innovation.

On Monday, department officials asked distance education subcommittee members to consider the ramifications of raising the cap to 75 percent, rather than eliminating it altogether.

Observers throughout the process have struggled to understand what the department hopes to accomplish with this change. Gregory Martin, the department official who led the subcommittee meetings, said that tweaking the existing cap could facilitate programs with “skills that are taught by unions or types of skills that involve using expensive equipment that a single institution may not be able to purchase.”

Previous Coverage

Details emerged in early January on the department's priorities for the rule-making process.

Inside Higher Ed reported that week on dissenting views around permitting more outsourcing.

An overview of the distance education subcommittee's purview and members.

The first set of subcommittee discussions revealed areas of agreement and tension.

The department downshifted on initial proposals during the second set of subcommittee discussions.

Most subcommittee members who responded out loud rejected this argument. Jessica Ranucci, an attorney for the New York Legal Assistance Group, cautioned that a large share of low-income students would likely be victimized by predatory schemes taking advantage of increased flexibility on accrediting academic programs.

"This just opens a huge market for people to take Title IV money into their own pockets and then leave," Ranucci said, referring to the law governing federal aid. "I don’t think 50 percent is arbitrary. Your degree being from a Title IV institution that meets all these other requirements is meaningful."

On the other hand, David Schejbal, vice president and chief of digital learning at Marquette University, speculated that some institutions might benefit from this rule change as an opportunity to outsource their general education programs and invest more resources elsewhere in the curriculum. 

State Authorization

A wide variety of changes remain up for discussion around state authorization, the system by which institutions are permitted to offer academic programs outside the state where their headquarters are located.

On Monday, David Poole, president of University of Mount Olive, in North Carolina, shared some striking details from his previous experience as an administrator at California Baptist University. California is the only state in the country that does not belong to the State Authorization Reciprocity Agreement, which prevents institutions from having to navigate individual state policies and fees when enrolling students in different places.

More "Neg-Reg"

The department has collected all of the videos, documents and other materials from the sessions thus far. New America's page includes links to all of the department's position documents.

Poole reported that his institution spent $30,000 earlier this decade researching what it would take to comply with Maryland laws if students enrolled at his institution moved there for military deployment or other reasons before finishing their degrees. To enroll one student from there, the institution would have had to pay the state $42,500 in start-up fees, his analysis found. In Massachusetts, the cost for the institution would have been north of $100,000, he said. Plus, he had to hire several staffers to figure out the requirements for each new state.

“This is almost like a compliance office for the NCAA,” Poole said, arguing that many small nonprofit institutions like his would be severely disadvantaged if the department placed more restrictions on their ability to enter into reciprocity agreements like SARA.

Credit Hour

Here’s our report from Tuesday.

Distance Education

Department officials wrapped up this week’s discussion of this issue with a tentative proposal to require online programs receiving federal aid to include interaction between students and an instructor or content expert as defined by the accreditor. Those interactions would need to be “regular and substantive” -- options include proactively checking in with students, hosting synchronous sessions, monitoring student progress and responding to student questions.

An earlier idea to explicitly define “instructional teams” in the regulations proved thorny, as subcommittee members struggled to reach agreement on the parameters.

Participants in negotiations throughout the process have expressed optimism that hashing out difficult issues is a productive, clarifying exercise.

“We have to thread the needle for institutions to implement, financial aid to implement, accreditors to implement appropriately,” Leah Matthews, executive director of the Distance Education Accrediting Commission, said during the distance education conversation. “If this was easy, we would have figured this out eight or 10 years ago.”

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