A Secret Rule

WASHINGTON -- Among the many new program integrity rules the U.S. Education Department issued a little over a year ago was one that went relatively unnoticed at the time: a rule that defines the “last date of attendance” for students who withdraw from online programs more stringently than in the past, and differently than for students in a traditional classroom.

At the time, the rule was lost in the hubbub over state authorization rules, the definition of a “credit hour,” and other, more controversial, regulations, some of which colleges challenged in Congress or in court. But before the program integrity rules took effect in July 2011 -- and even before they were published publicly, in October 2010 -- the Education Department was already using the new definition of “last date of attendance,” which varied considerably from the previous version, to begin investigations and, in some cases, collect financial aid refunds for students who dropped out.

When the Education Department began using the "last day of attendance" rule to evaluate colleges in audits, it had never been publicly announced. In effect, a group of higher education associations has argued, the department was expecting institutions to play a game without knowing the rules.

How the government defines the “last date of attendance” is important because institutions are responsible for recouping federal financial aid from students who drop out early in the semester and returning the unused portion to the federal government. In the past, the last date of attendance had been defined in a wide variety of ways for both online and traditional courses, because institutional policy differed. But in general, students were considered to be attending if they were present in class or logged on to an online class or course management system to participate.

The program integrity rules set a new standard for online programs: the last date of attendance was calculated instead by the last time a student participated in an online discussion or made contact with a faculty member. In the final rules in October, the department said that definition was consistent with advice it had been providing to institutions previously.

Simply clicking in was not enough, the department argued in responses to comments in the final rule, because students could leave their computers after logging into class, or someone else could log in for them. Both would make distance education fraud more likely.

In some cases, though, the department's actions went beyond mere guidance. When the College of the Canyons, a California community college, was audited in early September 2010, two months before the final rule was issued and almost a year before it took effect, auditors asked to inspect documents that pertained to the new definition, including faculty correspondence with students and student participation on message boards, said James Glapa-Grossklag, the college’s dean of educational technology and learning resources.

“Two months after they audited us, they published in the Federal Register their intent to put these regulations into effect beginning July 1, 2011,” Glapa-Grossklag said. “Basic public policy would hold that the whole concept of the rule of law would hold that laws apply equally to everyone, and they do so once everyone is informed of the law.”

The college passed the audit because California’s definition of when a student is considered enrolled in a distance learning course hewed more closely to the new federal definition, he said, meaning that the dates matched with the federal definition and that the colleges already had the necessary records available for the auditors.

“It does seem rather inappropriate that the department would ask us to spend a week of our work time, not serving students, but rather responding to their requests, when they had not even published their regulations in the Federal Register,” Glapa-Grossklag said.

A coalition of associations with ties to distance learning, including the WICHE Cooperative for Educational Technology, the American Association of Community Colleges, and several others, has challenged the department’s actions on that basis, writing in a statement of concern sent in April 2011 that such retroactive enforcement is inconsistent with the basic principles of the rule of law. “It is a longstanding and core principle of due process that persons and entities have a right to know what rules will apply before they take action,” they wrote. “Particularly in the case of institutions of higher education, this is a matter of both fundamental fairness and sound policy.”

Applying the standards before they were took effect was “arbitrary and capricious,” the group wrote.

The Education Department did not respond to repeated requests for comment from Inside Higher Ed.

In e-mail messages the groups obtained through a Freedom of Information Act request, two members of the Inspector General's office of the Education Department acknowledged that before the rule was published in October 2010, there was no clear guidance on how to define the last date of attendance. “Neither the [Higher Education Act] nor the department’s regulations define what constitutes attendance or instruction,” one wrote, according to the letter.

In addition to College of the Canyons, at least two other colleges in both the private and for-profit sectors were evaluated, and in some cases had to return Title IV funds, under the new definition before it took effect, said Russell Poulin, associate director of WCET.

“We’ve heard from other institutions [where] the same question has been raised,” Poulin said. “Some of them have had liabilities asserted and paid whatever the liability was,” returning federal financial aid for students who dropped out as defined under the new rule.

Because the new definition had not been made public, institutions frequently were not keeping good enough records, Poulin said. Audits can go back two or three years, and verifying that a student e-mailed a faculty member or participated in an online discussion sometimes forced colleges to hope that faculty members had kept electronic correspondence from more than a year ago.

“They had to go to the faculty and hope that the faculty, somewhere in their bottom drawer or pile somewhere, had proof of what was the last thing that student did,” Poulin said.

In the statement of concern, the groups argued that the department cannot apply the new rule retroactively, saying that doing so amounted to a “secret policy” because the new definition had not been made publicly available before it was published in October 2010. In the letter, they requested that the department stop retroactively enforcing the new definition and respect institutions’ policies on determining the last date of attendance until the rules took effect in July.

“They’re still going back and using that unpublished standard to look at institutions and what their activities were prior to July 1,” he said. “Hold us to that standard from July 1 on, when we’ve had it. We should have changed our practices. But before that, we shouldn’t be held accountable.”