When passed in 1965, the Higher Education Act (HEA) was intended to “to strengthen the educational resources of our colleges and universities and to provide financial assistance for students in postsecondary and higher education.” Updated or “reauthorized” several times since then, the Act has historically housed most of federal resources and regulations for higher education in the United States. Remember that the states have authority over higher education in their jurisdictions, but the lure of financial aid for students, research funds, and other federal levers gives the federal government considerable sway over institutional activity.

Reauthorization is overdue. The House of Representatives has weighed in with its PROSPER Act, which was a purely one-party production. The Senate has been holding hearings and may soon deliver its own, more bipartisan, version in the coming weeks.

What would we like to see in HEA?

Richard Nelson, President of Nicolet College, eloquently presented his ideas in last week’s post, in which he sought to encourage innovation and protect aid from fraudulent uses. He also issued a challenge to WCET and reminded us of our first responsibility:
“Once again, I suggest that WCET is well-positioned to do this work and hold firmly to the belief that students come first. Always.”crowd of college graduates moving tassles on caps from one side to the other

Meanwhile, the Policy unit of WICHE (our parent organization) invited WCET to contribute to a “Statement of Principles and Positions” regarding the HEA. In this post, I’ll share with you some thoughts in response to President Nelson and what was included in those “Principles and Positions” that were recently approved by the WICHE Commission. I’ll focus on two issues:

  • Innovation vs. Protecting Students: Stop trying to define the moving targets of each innovation. While it is a worthy and necessary goal in protecting students, we can do better.
  • State Authorization for Out-of-State Activities: Recognize state responsibilities and reciprocity agreements.

The Balance Between Encouraging Innovation and Protecting Students

There is a constant tension between: a) the introduction of new modes of instruction and b) the need to assure that students are not harmed and federal aid funds are used properly. These two desires should not be at odds. Innovators want to move forward unfettered by rules while consumer protection professionals seek tight controls based upon a history of malfeasance by a select few.

President Nelson states the challenge very well:
“If well-crafted regulation can reduce the risks associated with innovation and help overcome resistance to change…How do we find the balance between making room for new models without throwing the door open to the unscrupulous opportunists who will exploit every perceived regulatory loophole?”

row of old dictionary books

In the WICHE “Statement of Principles and Positions”, we suggest a long- and short-term strategy to find this balance.

But First…the Problem with Definitions

The one constant in life is change. Let’s accept that.

Congress, the Department of Education, and the rest of us are currently mired in efforts to try to define “distance education,” “correspondence education,” “regular and substantive interaction,” and “competency-based education.” One staffer from the House Education and Workforce Committee told a group of accreditation leaders that one reason they left the “distance education” definition out of the PROSPER Act is that they could not agree on one.

Let’s stop it.

The House and Senate could better spend its time by preparing for future (currently unimagined) innovations, rather than pursuing granular definitions that are instantly outdated. For example, the current federal definition allows your use of “video cassettes, DVDs, and CD-ROMs.” Ask your kids if they know what those are. Some of you reading this might not know what they are.

a black and white photo of a vhs tape and cds/dvdsThe principles document acknowledges three basic tenets in making our recommendations:

  • “Policy formation lags innovation, and it always will.
  • “Change is inevitable, and new innovations that are not new envisioned are on the horizon.
  • “Students must be protected, and federal financial aid should not be used for non-productive or fraudulent purposes.”

Long-term: Create a Flexible Measure for Innovations Not Based on Specific Definitions

Given the difficulty of a major policy change, we suggest a long-term strategy that will take time and discussion. But, we are certainly open to a quicker, innovative solution. Our recommendations:

  • “Create a commission to develop a new process and set of regulations to handle innovations. Rather than waiting for years after an innovation has already become main stream, adopt new processes that allow aid to be used for emerging innovations with clear safeguards.
  • “As a model for regulating innovative modes of instruction, consider a modified version of the medical model for approving drugs and treatments…”

Also, we want to shift the discussion from input-based measures (e.g., “regular and substantive interaction”) to outcome-based measures (e.g., “last day of attendance,” student progression).

Short-term: Maintain Definitions Until the Process Described Above is Ready

While waiting for the longer-term solution, we can live with definitions a little while longer. We recommended:

  • That the Department maintain the current “distance education” definition, but I would like to amend that. Since we wrote that recommendation, a recommendation from seven large, innovative colleges (all of them are WCET members) wrote a letter with their own suggestions for definitions. A copy of the letter appears at the end of those post. Their recommendations should be seriously considered.
  • Adding a definition of “competency-based education.” Unfortunately, the seven presidents were unsuccessful in creating a definition for that mode of instruction. A definition is needed to provide those students with aid and it would be wise to consult the Competency-Based Education Network for their input on a definition.
  • Finally, replacing the “regular and substantive interaction” definition. The Department of Education has been lax in providing actionable guidance in how to comply. See the analysis by Van Davis (now an independent consultant) and myself of the many documents that need to be consulted to determine how to comply. It is also a criterion based on inputs. The issue should be “DO students learn” not “HOW students learn.” Let’s focus on outcomes…even in the short-term. We can create outcomes-based safeguards that will protect both students and aid expenditures.

State Authorization for Out-of-State Activities

The Department of Education released a new federal regulation for state authorization of distance education that is set to go into effect on July 1, 2018. Watch for more from us on this issue in the coming weeks. Meanwhile, the House’s PROSPER Act suggests completely doing away with this regulation. Of course, they think that this will relieve institutions of seeking authorization in each state, but state regulations remain in place regardless of federal rules.

Some basic tenets underlying our recommendation:

  • States are charged with overseeing higher education activities within their borders.
  • This oversight provides necessary student protections.
  • Oversight is for ANY activity in the state, not just distance education.
  • An interstate reciprocity agreement is one means for an institution to obtain approval in a state.

Our recommendations are simple:

  • “…to better protect students, WICHE supports a requirement that postsecondary institution comply with authorization regulations for each state in which it serves students for eligibility to disburse federal financial aid.”
  • “…the U.S. Department of Education should recognize interstate reciprocity agreements as an acceptable method for an institution to obtain that authorization.”

In Conclusion…

There are many more issues that we must watch and comment upon. I highly recommend that you let your Representative or Senator know what you think. As an individual you can express your opinion. Volume counts.

drawing of a man holding a megaphone with explanation points coming out of itAnd…you might have an extra loud voice if you are in one of the twenty-four states with a member on the Senate Health, Education, Labor, and Pensions Committee. They’re working now. Make your voice heard.

Many feel that reauthorization will not pass this year. That would break the record for longest time between such actions. We still need to pay attention and participate. Sometimes language introduced now survives until the final product. Let’s make sure it is good language.

Thank you,


Russ Poulin smiling while holding a small bat


Russell Poulin
Director, Policy & Analysis
WCET – The WICHE Cooperative for Educational Technologies
rpoulin@wiche.edu    @russpoulin




February 20, 2018

The Honorable Lamar Alexander

United States Senate

Chair, U.S. Senate Committee on Health, Education, Labor & Pensions

455 Dirksen Senate Office Building
Washington, DC 20510

The Honorable Patty Murray

United States Senate

Ranking Member, U.S. Senate Committee on Health, Education, Labor & Pensions

154 Russell Senate Office Building

Washington, DC 20510

Dear Senator Alexander and Senator Murray,

We, the undersigned presidents of private not-for-profit and public colleges and universities across the nation, write to you to respectfully offer guidance as you revisit the distance education requirements within the Higher Education Act.

Over the past decade, higher education institutions of all sizes and status have embraced distance education/online learning as an innovative long-term strategy to meet student needs, deliver a more flexible, cost-effective form of academic instruction, and advance the Completion Agenda. Today, distance education has become a ubiquitous component of contemporary higher education with more than six million students taking at least one course at a distance.

Unfortunately, with the Higher Education Act last updated in 2008, federal regulations have been slow to keep up with advancing technology and innovations within the online learning sector. As a result, distance education is staring down an uncertain future – its long-term viability threatened by obsolete standards regarding “regular and substantive interaction” within federal statute. To create an environment open to sensible experimentation and that fosters innovations in products, programs, and services, Congress must revise the Higher Education Act accordingly.

Therefore, we are heartened by your desire to work in a bipartisan manner to draft a Senate reauthorization bill and your expressed openness to guidance on these provisions.

Republicans and Democrats share a commitment to increasing access, equity, affordability, and accountability, if by different means. We are confident the following revisions, which resulted from a collaborative effort of the undersigned to balance the needs of public and private institutions with adequate student and taxpayer protections, meet these obligations.

We encourage replacing the current definition of Distance Education with the following:  


Distance Education: Except as otherwise provided, the term “distance education” means education that provides students who are not in a physical classroom with substantive interaction, including, but not limited to, instruction, assessment, mentoring/advising, and learning support, enabled by ready access to qualified faculty, monitoring of student progress, and active intervention.

We recommend the following revision to the definition of Correspondence Course:

Correspondence Course: (1) A course provided by an institution under which the institution provides instructional materials, by mail or electronic transmission, including examinations on the materials, to students who are separated from the instructor. Interaction between the instructor and student and academic support, including access to qualified faculty, is limited, is not regular and substantive, and is primarily initiated by the student. Correspondence courses are typically self-paced and self-taught.

(2) If a course is part correspondence and part residential training, the Secretary considers the course to be a correspondence course.

(3) A correspondence course is not distance education.

Additionally, to enhance the ability of students to make informed decisions when choosing an educational provider, we recommend standardizing outcomes data at the institutional level and for each program of study:

Transparency: Make transparent outcomes data available by program at the undergraduate and master’s level for the following; (1) 100% and 150% graduation rates. (2) One-year retention rate. (3) Average annual cost for full-time attendance, broken out by tuition, fees, and living costs. (4) Federal student debt from tuition and fees.

The Higher Education Act serves as the single most important federal means to increase the capacity of low- and middle-income individuals to finance a post-secondary education. The Senate stands on the cusp of a historic opportunity. As you begin drafting the reauthorization bill, we strongly encourage you to consider these new and revised definitions.

Please contact us with any questions.

Respectfully submitted,

Dr. James N. Baldwin, President, Excelsior College

Dr. Michael M. Crow, President, Arizona State University

Dr. Sue Ellspermann, President, Ivy Tech Community College

Ed Klonoski, President, Charter Oak State College

Dr. Paul J. LeBlanc, President, Southern New Hampshire University

Scott D. Pulsipher, President, Western Governors University

Dr. Becky Takeda-Tinker, President, Colorado State University – Global Campus


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3 replies on “Higher Education Act – Innovations, Definitions, and State Authorization”

In the letter to Sens. Alexander and Murray, I now see some apparent contradictions or gray areas in the proposed definition of “correspondence course,” if that term must be used instead of “independent study.” Yes, interaction is primarily instigated by the student if only because there is much to read on one’s own before any instructor/mentor can weigh in other than to encourage faster progress. But to call such courses ‘self-taught’ either contradicts the existence of instructors/mentors or stands to demean their status as professionals, often with Ph.D.s or doctorates in progress. Further, such courses today often have online interaction that cannot be lumped in with isolated learning; and some have part-residential training, seemingly equating them with partly-online hybrids, the latter a term that suggests physical presence and possibly professional licensure, i.e., major state authorization concerns for…DISTANCE EDUCATION. So we are left with little to distinguish it from DE.

Have there been an updates to the status of 34 CFR 600 and the implementation of the disclosure requirements as of July1, 2018? The latest information was a request for a delay by the DOE.

Any news? Thank you.

Cheryl Dowd and I saw Sophia McArdle (the Department of Ed staffer who oversees state auth regs) earlier this week. She can’t tell us what is in it. Suspect the “Delay” word in the title tells us quite a bit. She reminded us that OMB sometimes takes many weeks to review and approve such documents, but that the Department is pushing them to get it out prior to July 1. If I had to guess…there will be a delay in enforcement and the they will try to rewrite the rule.

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