WCET continues to cover the wide-ranging set of rule changes that are being proposed under the U.S. Department of Education’s negotiated rulemaking process. The Department is seeking input on several major changes on issues with special focus on accreditation and how to handle “innovation” in qualifying students for federal financial aid. Examples of what is being proposed include fundamental changes to the recognition of existing and new accrediting agencies, competency-based education, regular and substantive interaction in distance learning, state authorization of distance learning, and written agreements allowing institutions to contract 100% of a program to a non-accredited entity.

Picture of the front of the U.S. Department of Education building.

WCET’s Russ Poulin serves on the Distance Learning and Educational Innovation Subcommittee, which has conducted one of its three sessions. Meanwhile, WCET State Authorization Network’s Cheryl Dowd watched a large stretch of the negotiations via live-stream. We collaborated on this post to give you a taste of the complex topics being discussed. We also tried to simplify the feedback process by asking some very direct questions about each issue.

In our analysis below, we focus on issues that are of great interest to the competency-based, distance, and correspondence communities that Russ is representing. We also focus on issues that have been discussed, with the exception of the last one below. That particular one covers the “academic integrity” expectations, which appears to expand beyond distance education to ALL courses. The subcommittee has yet to tackle this issue.

Enjoy our write-up of the following issues. We’d love your feedback…


The proposed changes to accreditation are numerous and could fill an entire post on their own. We cover only one below.

In brief, the Department is proposing more competition for accrediting agencies by making it easier for more agencies to be created. Frankly, the two of us would like to know more about this vision. On the face of it, a competitive model does not seem to be fully compatible with the oversight role expected of accrediting agencies. We can see where they are trying to promote accreditors that are focused on sub-sectors or encourage more innovation, but is this the way to accomplish that goal?

  • 602.3(b) What definitions apply to this part? Scope of Recognition for Accreditors (See pages 1-5)

Among the issues related to accreditation, the subcommittee reviewed the Department’s proposed language describing the Department’s scope of recognition of the geographic territory of accrediting agencies.  The Department staff indicated that the proposed language was designed to provide clarification to an existing capability regarding overlapping geographic areas of accrediting agencies. For example, a regional accrediting agency may authorize institutions within the same geographic area as a state accrediting agency.  The purpose of the existing regulation was described to encourage competition among accrediting agencies.

Despite the assurance of the Department staff that the new language does not change current available practice, members of the subcommittee expressed the following concerns:

  • While institutions may currently choose between a national or regional accrediting agency, there may be unintended consequences by increasing competition among accrediting agencies.
  • Institution choice may cause an institution to select the accrediting agency that is perceived to be the easiest to achieve approval.
  • While the Department wanted to level the perception of a hierarchy between regional and national accreditation, the result may be an increased accrediting hierarchy by some institutions, creating an agency only for “elite” institutions.


  • Should the Department encourage competition among accrediting agencies?
  • If there are choices for institutions in selecting an accrediting agency, what protections should be put in place to maintain quality among the agencies and prevent confusion to students?

Definitions of Correspondence & Distance Education, Including Regular & Substantive Interaction

  • 600.2 Definitions: Correspondence courses, distance education, and regular & substantive interaction (See pages 2-4)

In 1992, the definitions of “distance” and “correspondence” education were written in opposition of each other. If 50% of an institution’s courses or 50% of an institution’s students are correspondence students, then the institution is ineligible to disburse federal financial aid. Embedded in the definitions is  the concept of “regular and substantive interaction,” which has been the subject of guidance from the Department, but is still a fuzzy concept to many in the postsecondary world. In the Department’s guidance and in audit findings, the focus has been on activities by the instructor, which seems to define “instruction” more than “interaction.” There have also been questions about who qualifies as an instructor.

There are huge implications in the outcomes of this issues for distance education, competency-based education, and consumer protection. Remember that the ultimate goal for the Department is to design a way for them to determine what counts and does not count for aid eligibility. It would be nice to have a more outcomes-based alternative, but it is unlikely that will fly.


  • The Department is proposing allowing for an “instructional team” so that institutions using an unbundled faculty model (one course may have different people providing direct instruction, academic feedback, and assessment feedback) are included. How would you improve that definition?
  • The Department is proposing that an institution’s accrediting agency determine who “qualifies an instructor or a member of an instructional team and what qualifies as regular and substantive interaction” given some guidelines. Does it work to have the accreditor make this determination? How would you improve it?
  • Should there be an option of interaction initiated by the student instead of the instructor, such as happens in a competency-based education course? How do we guard against the student being left to learn on their own?
  • One of the guidelines for regular interaction includes the requirement for instructor-initiated interaction at least once per week in a non-term program. One institution said that this would harm their CBE program. How would you improve?
  • You may want to look at the proposed language and suggest improvements.

What Counts as a Correspondence Student?

  • 600.2 Definitions: Calculating the number of correspondence students (See page 12)

As mentioned above, if an 50% of an institution’s students are declared to be “correspondence students,” then that institution is ineligible to disburse federal financial aid. Previously, there was no guidance on how to calculate which students are distance or correspondence. The Department proposes that a “correspondent student” is one “whose enrollment during an award year was entirely in correspondence courses. This is a small change that could have a big impact on institutional eligibility.


  • Does that definition work?
  • Does that definition protect against fraud?

Contracting with a Non-accredited Provider to Offer 100% of an Institution’s Program

  • 668.5(c) Written arrangements between an eligible institution and an ineligible institution (See pages 15-17)

One of the proposed changes that received the most discussion the proposal for institutions eligible to disburse financial aid to contract with an ineligible institution or organization. Under current regulations, the ineligible institution is allowed to offer less than 50 percent of the educational program. The proposed change would remove that cap and allow an institution to contract out as much as 100 percent of a program.

Picture from sign posted at the Smithsonian National Air and Space Museum. The signs read "The National Air and Space Museum is Closed today."
No visiting the museums while rulemaking was conducted.

Negotiators expressed considerable worry about the possible ramifications of allowing an institution to contract the entirety of program. What controls would the institution have over the program? Could this lead to more fraud?


  • The Department negotiators said that they were not necessarily wedded to their proposal that would allow institutions to contract out as much as 100% of a program. The limit is currently 50%. At what percentage should the limit be set?
  • Should an institution be limited in the number of programs it contracts out? If yes, what should that limit be?
  • What other safeguards are required?

State Authorization for Distance Education

  • 600.2 Definitions: “state authorization reciprocity agreement” (See page 7)
  • 600.9 (c) state authorization for distance education (See pages 13-16)
  • 668.50 Institutional disclosures for distance or correspondence programs. (See pages 41-43)

The Department’s proposed changes included the elimination of the currently delayed 2016 State Authorization Regulations. However, the Department shared that the initial discussion from the subcommittee has caused Department leadership to change their thoughts from eliminating the regulations to now understanding that the concepts are important to keep, but there is the need to determine what must be changed or clarified. The official from the Department leading the subcommittee discussion on this issue reiterated that, prior to 2010, there was no Federal regulation related to state authorization for activities that occur outside of the state of the institution. The purpose of the regulation, he explained, was a hook to require that institutions follow the states’ laws for activities in order to participate in title IV programs.

For the definition of a “state authorization reciprocity agreement” (as included in the 2016 regulation), not all committee members concurred as to the interpretation of the language surrounding enforcement of state laws versus reciprocity agreement standards. The Department provided the letter from former Undersecretary Ted Mitchell describing the intent to support that the state would agree to use the standards of the reciprocity agreement.  It was additionally discussed that most states went through a legislative process to participate in SARA, which is a voluntary reciprocity agreement for the states.

Picture of the capitol building at dusk.
Several concepts for state authorization regulations were underscored as important.  First, that elimination of the regulations would be bad for consumers. Second, that reciprocity provides a less onerous and less expensive alternative to state by state authorization for activities than was available when the regulation was first introduced in 2010.  Third, that students in professional licensure programs should be made aware whether the program will lead to licensure where the student is located when taking the program.


  • How should a state authorization reciprocity agreement definition address reciprocity member states following the standards of the reciprocity agreement versus enforcement of state laws?
  • What disclosures should be required of institutions and how should the disclosures be provided to students?

Definition of Asynchronous Courses

  • 668.3; Academic year. Definitions (related to asynchronous coursework) (See page 14)

The Department proposed language intends to acknowledge asynchronous courses in a framework that clarifies or identifies an academic week and an academic year for the purposes of Title IV disbursement.  The Department indicated that asynchronous coursework has been stated in the regulations for approximately ten years, but that a revised definition is needed to address that asynchronous coursework is not always structured with specific intervals in the same manner as synchronous coursework.

Several members of the committee expressed confusion over the proposed language and the Department’s attempt to create language compatible for all asynchronous modalities: correspondence, distance education, and direct assessment. A few committee members expressed the concern that the proposed language did not sufficiently address assessment.


  • How should asynchronous coursework be defined and sufficiently address the different possible modalities?

Academic Programs Offered on a “Subscription” Basis

  • 668.2 Definitions: Full-time student in a subscription-based program (See pages 7-8)
    §668.2 Definitions: Subscription-based program (See page 10)
    §668.34 Satisfactory academic progress (in a subscription-based program) (See pages 36-38)
  • 668.34 Disbursing funds (in a subscription-based program) (See pages 45-46)

Subscription-based programs forego the usual quarter, semester, or tri-mester structure and allow a student to take a specified number of credits over a set time period for a fixed price…or some variation on that idea. The student is not confined to a specific time period to complete that coursework within that term. Not surprisingly, that model does not fit well with traditional financial aid disbursement schema. The Department is attempting to define a subscription-based program and the aid processes for students enrolled in one.


  • For those that offer subscription-based programs, you should study the proposed rules closely as they will have a significant impact on your operations. How would you improve what is being proposed?

“Clock Hour for Distance Ed” Definition, Plus “Academic Engagement” in All Distance Courses

  • 600.2 Definitions: “clock hour” for distance education settings (see pages 1-2)
    §600.2 Definitions: “academic engagement” in a distance education course (currently embedded in the “clock hour” definition)

Most institutions choose between the credit hour or clock hour to measure student learning and progress through a degree or certificate program. The clock hour has typically been used by practical programs, such as cosmetology or truck driving in which all (or most) of the learning is through direct instruction or hands-on experiences. Some clock hour programs are using a hybrid approach and it is possible that some (computer programming?) could be conducted completely at a distance. The clock hour definition previously did not include distance education courses. The proposed definition includes the definition of “academic engagement,” which has been previously used in calculations of financial aid refunds for students who have dropped out of distance courses without notifying the institution. Since the notion of “academic engagement” is used in multiple place, Russ asked the Department to pull it our as a separate definition.


  • Does “fifty to sixty minutes in a 60-minute period of consecutive or non-consecutive academic engagement” work for defining a clock hour in a distance education course?
  • Are the activities in “academic engagement” still relevant whether in clock hour or credit hour settings: “attending a synchronous class, lecture, or recitation online; interacting with a faculty member or participating in an online discussion about academic matters; participating in interactive tutorials or computer-assisted instruction; or taking exams. Academic engagement does not include logging into an online class or tutorial without active participation or participating in academic counseling or advisement”? How might you improve them?

Academic Integrity for ALL Courses – Should Face-to-Face Courses Also Combat Cheating

  • 602.17 Applications of standards in reaching an accrediting decision (academic integrity in courses requirements) (See page 13-14)

This proposed change focuses on the requirements that institutions assure that, “the same student who participates in and completes the course or program and receives the academic credit.” In other words, assure that students are not cheating on their exams, papers, or other academic work. The proposed change seems to expand this requirement to ALL instruction, not just distance and correspondence courses.

This proposed change has flown under the radar and you may want to pay attention. It was not discussed in the subcommittee, yet.


  • Distance and correspondence education have lived with this wording. How would you improve the requirements? Note: we might not be able to change some of it because it is in statute and Congress would have to make the change.
  • What’s your thoughts on expanding it to all instruction?
  • What do they mean by an “electronic badge” as a way to verify student identity?

What’s Next? And Seeking Your Feedback

If you wish to learn more about negotiated rulemaking, we thank Higher Learning Advocates for providing a “101: Negotiated Rulemaking” summary of how the process works. The rulemaking process is slated to end by the end of March. The Department maintains a great web page with background documents, a list of negotiators, and links to recordings of the sessions.

The subcommittee meets again on February 11-12 and its final meeting is March 11-12. This will go by quickly.

We invite input either through responding to this blog post or direct communications with us. Understand that we’re getting lots of feedback and may not respond to you promptly or give you the proper thank you for taking the time to provide input. Thank you for doing so.

Photo of Russ Poulin
Russ Poulin
Senior Director – Policy, Analysis, and Strategic Alliances
WCET – The WICHE Cooperative for Educational Technologies


Cheryl Dowd
Director – WCET State Authorization Network
WCET – The WICHE Cooperative for Educational Technologies


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5 replies on “ED Negotiated Rulemaking: Issue Summary and Seeking Your Input”

There is so much here that might be worthy of comment. At a minimum, the department does not seem to understand what accreditors do and don’t do. No accreditor can give a college the authority to offer a program unless that accreditor is also a government entity such as New York or, for some purposes, the California Bar. Regional and national accreditors mainly certify comparability.

Also, state laws trump, you’ll pardon the expression, the policies of accreditors. If Colorado law says that nurses have to take three semesters of French, neither NLN nor the HLC can compel a Colorado college to do something different. Argue, yes; compel, no. States have often deferred to accreditors, but that’s because of trust. If that trust melts away because Wiley Coyote becomes an accreditor, the department will have to regulate at a much higher level, probably requiring new statutes superseding state laws, which they are unlikely to get.

One net effect of allowing all kinds of new entities to serve as gatekeepers in order to allow access to federal money is that transferability of credit will shrivel, the opposite of what I thought governments wanted.

Instead of decoupling the government from the accrediting process, the current department leadership seems to want to get their grasping forepaws further into the honey jar. At some point the states will start pushing back, and it won’t be just blue states. I wish they paid some attention to how state laws work.

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