Three Questions on Online Learning Compliance for U-M’s Ricky LaFosse

If you want to learn everything you need to know about the rapidly evolving regulatory and compliance landscape for online education, talk to Ricky LaFosse. Ricky is the Associate Director of Compliance and Policy at the University of Michigan’s Center for Academic Innovation (CAI). Ricky graciously agreed to share some of his insights with us, as well as to talk about the educational and career path that led him to his current role.

Q: Tell us about your role as Associate Director for Compliance and Policy at CAI. What sorts of issues, challenges and questions occupy your time? What keeps you up at night?

A: Most people probably aren’t going to first think “compliance” or “policy” when coming across the name Center for Academic Innovation, but growing our center’s expertise and reputation in these areas is critical to my role. As we partner with academic units within the university in pursuit of new and innovative approaches to teaching and learning, I think it offers tremendous value to pair regulatory compliance expertise with expertise in media production, research, software development, marketing, learning experience design and other areas that might be more commonly associated with learning innovation units. Identifying and addressing potential concerns—whether ethical, regulatory, operational, reputational, etc.—can give everyone involved with an initiative more confidence to move forward.

I’m also mindful that innovation is ultimately what drives our work. My approach, and that of our compliance team more broadly, involves a lot of collaborative problem-solving. While policies and procedures have been developed to guide risk mitigation efforts, we tend to work alongside our innovators as initiatives are being developed and consult on potential solutions to unique compliance challenges as they arise.

The center also does not have the authority to dictate policy for the entire university or enforce our unit-level expectations for compliance best practices where other units on campus are concerned. We do, nevertheless, recognize that our initiatives can sometimes invite new operational and compliance challenges for the university that need to be addressed. We are also well aware that consistency can be key to the success of compliance efforts. For emerging issues and challenges impacting the rest of the university community, we engage academic units, the Registrar’s Office, Financial Aid, General Counsel, ITS, etc., through various working groups to craft new policy recommendations and develop guidance and resources collaboratively.

As far as what is “keeping me up at night,” there has been a flurry of regulatory actions over the past 2 to 3 years directly targeting distance education, which is a large segment of our portfolio at the center. The U.S. Department of Education has been attempting to address several quality and consumer protection concerns regarding distance education programs, and they have been using just about any tool at their disposal to do it. While protecting students’ interests is valid and needed, I worry the department might be inadvertently adopting policy positions that can actually harm more students than they help while also creating an undue burden for institutions trying to do the right thing. Concerns over administrative burden and compliance costs tend to snowball over time, and I fear more costs could soon be passed down to students or certain online learning opportunities will become less widely available.

For example, it seems reasonably likely to me that many students could be harmed as the result of upcoming restrictions on enrolling out-of-state students into distance education programs leading to licensure. Specifically, an enrollment ban will soon apply whenever online licensure programs do not satisfy requirements where a student would be located “at the time of initial enrollment,” unless the student attests to their intention to later seek employment in a specific state where requirements are known to be satisfied. Institutions are already required to provide state-by-state licensure status information to applicants regardless, but the enrollment ban is new, effective July 1, 2024. An applicant cannot simply attest that they are aware of the limitations and either have no interest in pursuing licensure or that they are willing to work in whatever state offers employment where requirements are met (i.e., there are no “don’t know” or “don’t care” options available), which limits educational opportunities.

We have also seen several attempts in recent years to reduce the effectiveness of the State Authorization Reciprocity Agreements, or SARA, as the Department considers proposals allowing individual member states to enforce laws that more directly target higher education institutions regardless of reciprocity status. Forthcoming proposals could even include requirements that SARA-participating institutions separately seek authorization in a state once certain student headcount thresholds are reached, possibly putting students’ federal aid eligibility in jeopardy as these authorization efforts get sorted out. Some readers might recall when online students in California, who were enrolled at out-of-state publics, temporarily lost aid eligibility back in 2019 due to circumstances beyond an institution’s control. Are we about to see something similar take place in a year or two? For now, I will optimistically state that I think the Department does also recall that incident and will have a creative solution included with any forthcoming proposed rulemaking, but I will also be drafting some public comment language to have at the ready just in case.

Again, I do think the Department is approaching these issues with good intentions. Any concerns I have mentioned can probably be attributed to how complicated distance education is to effectively regulate, in part because of the many jurisdictions and interests that are often involved. Even after engaging with various stakeholder groups, the Department may still find it unavoidable at times to limit options for students and/or add significant administrative burden for institutions where it has concluded there is an overriding interest in protecting students and taxpayers. Those who work in online education at mission-driven institutions, meanwhile, are well aware of the many benefits that online education offers, particularly but not exclusively to those who would not be able to reach their educational and professional goals without these programs. I think the voice of higher education institutions has become a much-needed part of distance education rulemaking efforts to help ensure the Department is aware of the unintended consequences that can result.

Institutional policymaking and compliance efforts, often prompted by regulatory changes, can likewise be complicated. While my CAI colleagues and I have worked to develop some more centralized distance education compliance and policy infrastructure through establishing multiple working groups with various academic and administrative units represented, the efforts involved with coordinating these discussions, communicating appropriate guidance through a large, decentralized institution, and offering ongoing compliance support from there take time and can be resource-intensive. Ideally, all regulatory updates would come with clear and obvious benefits to students to make these efforts feel worthwhile (and that is often the case, to be fair). Sometimes, though, we find ourselves having conversations about how best to prevent rule changes from harming students.

Q: Compared to most colleges and universities, the scale of online learning programs that CAI works with at Michigan is large. For schools that have a smaller online learning footprint, or are at an early stage of building out their central online learning capacities, what are the big issues related to compliance and accreditation that they should be paying the most attention to? Can you share some resources or links that might be helpful to anyone trying to get their head around the shifting online learning regulatory landscape?

A: At the University of Michigan, we have several online learning compliance resources that we use internally but have also made publicly available. These include the Online and Hybrid Programs Playbook and the compliance page of our Online Teaching site. Note that these resources are all intended for informational purposes only, and it would be important for anyone considering whether to adopt specific procedures or approaches to first check in with their legal teams and/or other subject matter experts at their institutions.

I also recently co-wrote a quick overview resource, an Introduction to the Online Learning Regulatory Landscape, with UPCEA’s Policy Committee, which might help address the questions and concerns of smaller or newer units. This article was the first installment of a new “Policy Matters: Primers and Insights” series from UPCEA, and more quick explainers like this one will continue to be published. While this should not be considered an endorsement from the University of Michigan, I have personally gotten a lot out of engaging with UPCEA over the years and think they do a tremendous job keeping their members well informed about upcoming changes to distance education policy. Many resources, like the article I linked above and the information provided in their newsletters, are freely available regardless of membership status.

I think my job would also be a lot harder without the resources and membership benefits provided by WCET and its State Authorization Network (SAN). While state authorization topics remain prevalent, the resources and network conversations have evolved to cover a much wider range of online education compliance topics. At a minimum, I would highly recommend subscribing to the WCET Frontiers blog. The blog features detailed breakdowns of distance education policy updates and contains a lot of helpful insights.

In addition to these resources, I subscribe to many newsletters and listservs that have a broader focus but will very often produce helpful analyses on distance education compliance topics. The On EdTech Newsletter and Thompson Coburn’s REGucation are a couple of my personal favorites. Thompson Coburn also regularly provides free webinars led by its attorneys.

Q: You have a J.D. and are hoping to soon add a Ph.D. in Education Policy after defending your dissertation in a couple of weeks. Can you talk about how these terminal degrees complement each other in your work? And for those of us who can’t get both a J.D. and a Ph.D., what sort of education, training and experience do you think is important to build the expertise to do the sort of work you do at Michigan?

A: I think the J.D. and Ph.D. in Education Policy offer a great pairing for my role. But, as you allude to, this can be a rare combo to come across in a candidate pool and a hard one to piece together while already on the job. Fortunately, I don’t think either degree should be considered strictly required. I can understand why institutions might at least prefer a J.D. depending on the level of decision-making authority needed or how much existing access there is to legal counsel, etc. Still, there are many successful distance education compliance professionals I consult with at other institutions who have educational backgrounds completely different from my own. SAN recently published a study that provides a detailed profile of the “state authorization professional,” further illustrating this point. According to their survey research, most of those working in this space have neither degree. About 40 percent do still appear to have a terminal degree of some type. Unique responsibilities and needs for a position could lead to stronger preferences for one or the other degree type.

The J.D. background has probably been more helpful for thinking through what, when and how specific laws, regulations and policies might apply, which is critical to the majority of the day-to-day work for this type of role. I think pursuing a Ph.D., meanwhile, has helped more when it comes to considering what policies “should” apply, which is particularly valuable for advocacy work, such as participating in public comment opportunities. This background has also helped shape my understanding of policymaking implementation cycles, the need to involve stakeholders and subject matter experts early and often, and how to evaluate what successful policy and compliance efforts might look like in different contexts.

Without the J.D., in particular, I would imagine there could be a learning curve when it comes to identifying and understanding sources of law and knowing when and how to communicate with legal counsel and government affairs offices. But I don’t think developing the baseline of legal literacy needed for these types of engagements requires three years of law school. For example, I mentioned SAN earlier as a membership organization that supports distance education compliance professionals. While not a direct substitute for law school, SAN does offer introductory courses and workshops with mentorship opportunities that can help develop legal literacy in some of the areas most relevant to online learning. Otherwise, general research, communication and project management skills, which are widely obtainable through so many different educational and professional backgrounds, are what I would consider to be most critical.