In a new bill regarding higher education rules proposed in the House of Representatives:

  • all federal state authorization rules are ended,
  • competency-based education gets a boost with “regular and substantive interaction” being redefined and expanded accreditation oversight,
  • accreditation reviews for distance education are a thing of the past,
  • some confusion remains over distance and online education definitions, and,
  • there would be new tools to inform students about colleges and financial aid.
President Lyndon Johnson signing the Higher Ed act surrounded by several witnesses.
President Lyndon B. Johnson signs the Higher Education Act, November 8, 1965. Image in public domain.

There’s still a long road ahead before the vision would become reality, but all these things are envisioned in the House of Representatives’ sweeping plan for the future of higher education in the United States.

The House’s Committee on Workforce and Education released a first draft of a bill regarding the reauthorization of the Higher Education Act of 1965. The PROSPER (Promoting Real Opportunity, Success, and Prosperity through Education Reform) Act. The Senate will soon release its own version.

While this is just the beginning, we need to pay attention all along the way so that we can have input before it is too late. This is especially true given the increasing tendency towards a lack of Congressional transparency.

Others in the higher education community (ACE, NASFAA, Robert Kelchen’s 3 key takeaways) have commented on the overall impact of the PROSPER Act. I’m focusing on the issues that have the most direct impact on the work of WCET members. The interpretations are my own and I take responsibility for any errors. Enjoy!

Logo with the outline of a tree with leaves and the words:

No More Federal State Authorization for Distance Education

On page 468 of the Act is a section that would repeal and prohibit the enforcement of most federal state authorization regulations. Suggested to be removed are the state authorization regulations that were issued in 2010 and updated last year. The updated parts of the regulations (set to go into effect July 1, 2018) would require institutions serving students in other states via distance education to demonstrate that they had the approval of each state where they serve those students.

Authorization focuses on “Physical Location”

In the PROSPER Act, the expectations are simplified greatly. For institutions, they would be required to:

“…provide evidence to the Secretary that the institution has authority to operate within each State in which it maintains a physical location at the time the institution is certified under subpart 3.”

They seem to be focusing authorization on the institution’s home state and other states in which the institution may have a “physical location.” Unfortunately, the term “physical location” is not defined. In looking through the Financial Aid Handbook a “location” is approved by and accreditor, is not a branch campus, and where 50% or more of a program is offered.

Presumably, the authors of this section did not understand the differences among the states in defining “physical presence” in a state. I would assume that they are first thinking of the state of domiclle (the legal home state) for the institution. For other states, they are probably thinking of an actual building that is leased or rented in another state by the institution and would probably not include such things as weekend courses in a hotel, faculty living in another state, or field trips. But, I can’t be sure.

If PROSPER becomes law, these tricky nuances of “physical location” would need to be clarified.

Authorization for Distance Education is Removed

Any expectations for state authorization for institutions serving students via distance education in other states has been removed. Many in higher education will cheer this action. I think it is a mistake as it seems to me to be a reasonable expectation that institutions follow the laws in states in which they disburse federal funds to students.

For many distance education providers, there is great angst about the new notification requirements for professional licensure programs that are set to go into effect in July of next year. If this legislation is passed, those notifications would no longer be enforced. Watch for more word from Cheryl Dowd (State Authorization Network Director) and me on this issue. Even though that requirement might vanish, colleges should do more than they are now. It is the right thing to do for students. If you want to be selfish, it’s the authorization issue that is most likely to land you in a lawsuit with students.

Meanwhile, we need to remember that (even if passed) this legislation WILL HAVE NO IMPACT ON STATE LAWS. This Act (if adopted) will not supersede state laws and that fact is reinforced on page 11 of the Act. Remember that states will still expect institutions to follow their laws when serving students located within their borders, regardless of how their education is delivered.

Support for Reciprocity for State Authorization

There is explicit support for reciprocity agreements among states, which would include the State Authorization Reciprocity Agreement. On pages 11-12 is language stating that nothing in the state authorization section of this Act should be construed to:

“limit, impede, or preclude a State’s ability to collaborate or participate in a reciprocity agreement to permit an institution within such State to meet any other State’s authorization requirements for out-of-state institutions.”

That is a great addition.

No More Accrediting Review of Distance Education, But New Review for Competency-Based

Photo of the U.S. CapitolOn pages 475 and 482 are two small statements that strike “distance education” and replace it with “competency-based education.” Here is the language that would be changed taken from a section of the existing law about the federal recognition of accreditation agencies:

“If the agency or association reviews institutions offering distance education courses or programs and the Secretary determines that the agency or association meets the requirements of this section, then the agency shall be recognized and the scope of recognition shall include accreditation of institutions offering distance education courses or programs.”

If you make the change in the language, to me that means:

  • Accrediting agencies would no longer need to seek special approval from the Department of Education to be able to accredit institutions with distance education programs.
  • Accrediting agencies would no longer be required to perform special reviews of distance education courses or programs.
  • A new expectation would be placed on accrediting agencies to obtain special Department of Education approval to be able to accredit institutions offering competency-based education.
  • Accrediting agencies so approved would need to perform special reviews of competency-based education courses or programs.

This seems to be a win for distance education in being treated like all other traditional programs. This might be considered as a necessary political and consumer protective step for competency-based programs.

Along with other changes (see below) regarding competency-based education, the intent seems to be to place much weight on the accrediting agency’s oversight of what works in competency-based programs. This language appears to remedy the shortcomings in the current interpretations of federal law found in the recent audit of Western Governors University by the U.S. Department of Education’s Office of Inspector General.

New Definitions of Correspondence, Competency-Based, and Regular & Substantive Interaction

New definitions of “Correspondence Education” (p. 25) and “Competency-Based Education” (beginning on page 28) seem to subtly address the issues regarding “regular and substantive interaction” in the audit report of WGU. Let’s look at a portion of the new competency-based education (CBE) definition, which says that CBE:

“…provides the educational content, activities, and resources, including substantive instructional interaction, including by faculty, and regular support by the institution, necessary to enable students to learn or develop what is required to demonstrate and attain mastery of such competencies, as assessed by the accrediting agency or association of the institution of higher education.”

Notice that “interaction” and “regular” are now separated. Interaction is limited to “instruction interaction” and is not necessarily limited to being provided by a faculty person. “Regular” talks about “regular support by the institution,” which again expands the definition beyond merely instructional engagement and beyond only the faculty person of record.

On first blush, this appears to be a clever way to address the findings in the WGU audit. I worried that any legislative relief might help WGU, but not help other institutions with CBE. That does not seem to be the case. However, it does seem to help CBE while not making the same changes in the definition of distance education, possibly leaving distance education at risk of falling under the Office of Inspector General’s interpretation of “regular and substantive interaction.”

I will be curious to see how the CBE community reacts. Unfortunately, they have not been speaking with one voice. Will CBE folks accept it and will it work? Stay tuned.

Distance Education and Online Education Definitions

In one of the previews of the PROSPER Act there was a statement that the troublesome distance education definition was fixed. I was glad to hear this given my recent recommendations on the many definitions currently in use. Unfortunately, there were no magic bullet fixes or even any changes to the distance education definition. That author may have confused distance education and the above-mentioned changes to correspondence and CBE definitions (insert heavy sigh here).

There are only four mentions of “distance” in the Act. The term “online” appears 24 times. Unfortunately, references to “online education” are never defined (insert two heavy sighs here). The most notable mentions are:

  • On page 24, an institution located outside the United States that offers federal aid “may not offer more than 50 percent of courses through telecommunications.”
  • On page 48 regarding a “College Dashboard” website, additional reporting requirements for institutions that offer all their undergraduate programs online.
  • On page 95, exempting institutions that provide instruction primarily through online courses from sexual assault rules. The term “primarily through online courses” is not defined. If it is not completely online, couldn’t sexual assault still happen?

It would be good for the PROSPER Act to improve the distance education definition and/or add a definition of online education. This is an initial analysis, so I may have more specific recommendations in the future.

New Online Financial Aid Tools to Aid Studentsbinder clip holding paper that reads

PROSPER seeks to bring some financial aid practices into the digital world:

  • On page 429, beginning not later than one year after enactment of PROSPER, online counseling tools will be tested and made available for students receiving Pell Grants or borrowers of loans. The tool will be used both for yearly counseling and for exit interviews.
  • On page 433, create an online estimator tool to allow a student to enter basic information and obtain non-binding estimates of aid that the student might receive.

The Distance Education Demonstration Program is Removed

The removal of that historic remnant appears to be a housekeeping move. I cannot remember the last time that any activities were conducted under that program.

We’ve Only Just Begun

This is the first step in a long process. The Senate Health, Education, Labor and Pensions (HELP) Committee says that offering its own version of a reauthorization bill is its first priority in the new year. The leaders of the SENATE HELP Committee have a history of working in a more bipartisan manner than does the House, so there may be significant differences in what they propose.

I have seen several predictions that a final reauthorization bill might not be approved until 2019. That would be after a new Congress is seated…and, if there are significant changes, they may have their own ideas.

It is important for us to keep track of the progress and to try to get improvements or wholesale changes where we think appropriate. I recall a previous round of these negotiations during the last reauthorization. Some nonsensical items that were in the original bill made it to the final version because people kept saying it would be “fixed in the final draft.” Once these things get momentum, Congressional staff want to change as little as possible.

We need to watch closely.

We need to keep vigilant.

We need to speak up.

Again, this is a first pass at this language by me. I encourage you to go ahead and contact your Congressional Representatives now if there are items that you wish to see changed. In future blog posts, there will probably be other items within this 542 page Act on which I will comment. I also plan to make suggestions on items on which we should coalesce around a common message.

Meanwhile, have a PROSPER-ous holiday season!

RussRuss Poulin smiling while holding a small bat

Russell Poulin
Director, Policy & Analysis
WCET – WICHE Cooperative for Educational Technologies  @russpoulin




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Financial Aid photo credit: Nick Youngson

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