Much to everyone’s surprise, the Department of Education finally released the last set of regulations from last year’s negotiated rulemaking for public comment on April 1st (and it wasn’t an April Fool’s Day joke—we checked).
This post will examine the proposed changes to the distance education and credit hour definitions. We’ll have another post early next week that will dig deeper into the proposed changes related to direct assessment and competency-based education as well as a few other select issues such as proposed changes to the credit hour definition, calculating financial aid eligibility for correspondence education, and defining an instructional week for asynchronous delivery.
For a more comprehensive review of how we got here, you can check out all of our blog posts on the 2019 negotiated rulemaking process here, but here’s the TL;DR version.
In 2018 the Department of Education solicited public comments on the scope of a negotiated rulemaking process that might address distance education regulations, including state authorization and regular and substantive interaction. As a result of the comments it received, the Department announced it would engage in an unprecedentedly large negotiated rulemaking process in early 2019 that would include a wide variety of regulations including accreditation, distance education, state authorization, religious institutions, licensure notifications, and several other areas. In order to get this work done, the Department appointed three subcommittees that would make recommendations to the main committee of negotiators. Given the vast scope and complexities of the proposed regulations, most folks assumed that it would be impossible for the negotiators to reach unanimous consensus. However, with only minutes to spare, the negotiators reached consensus, thus requiring the Department to release the consensus language for public comment. Since consensus was reached on April 3, 2019, the Department has released for public comment and eventual implementation three buckets of regulations. The most recent of these buckets dealt with TEACH grants and faith-based institutions. Readers may remember that state authorization and professional licensure regulations were released for public comment in July with the final regulations released on October 31, 2019—just in time for a July 2020 implementation.
Which leads us to today. What follows is the first part of our analysis of the proposed regulations that we believe will impact WCET members and distance education the most. For the purposes of this post, we’re using the proposed regulation draft document rather than the recent Federal Register announcement. We’re doing this so it will be easier to direct you to specific language as well as make it easier for you to use any PDF program to mark up the proposed language. Buckle up because this may be a wild ride.
The Proposed Regulations: Regular and Substantive Interaction, 34 CFR 600.2
For those of you playing along at home, you know that Russ Poulin and I have been writing and talking about regular and substantive interaction for probably more years than either of us cares to remember. Russ started writing about it back when Saint Mary-of-the-Woods’ was first sanctioned by the Department of Education’s Office of the Inspector General (OIG) in 2012 for not being in compliance with the definition of distance education found in 34 CFR 600.2. Specifically, the OIG claimed that Saint Mary-of-the-Woods’ was NOT offering regular and substantive interaction in its distance education courses, effectively rendering those courses as correspondence education and making them largely ineligible for Title IV financial aid. The result for Saint Mary-of-the-Woods was the recommendation by the OIG that it refund the federal government $42 million in Title IV financial aid. Fast forward several years and the OIG audited Western Governors University and reached a similar conclusion, this time recommending that WGU repay $712, 670, 616 for similar reasons. In both cases, the OIG auditors used their own definition of what “regular and substantive interaction” (RSI) meant since there was no definition in the regulations and the Department had never definitively provided guidance. (For an overview of the complexities around the lack of a definition of RSI, you can view the post Russ and I wrote here, which remains the most read blog post on Frontiers for several years running.) Enter the 2019 negotiated rulemaking process and a deep desire to define RSI once and for all.
The current definition of regular and substantive interaction is embedded in the definition of distance education. That definition is below:
Distance education means education that uses one or more of the technologies listed I paragraphs (1) through (4) of this definition to deliver instruction to students who are separated from the instructor and to support regular and substantive interaction between the students and the instructor, either synchronously or asynchronously.
The technologies may include —
One-way and two-way transmissions through open broadcast, closed circuit, cable, microwave, broadband lines, fiber options, satellite, or wireless communications devices;
Audio conferencing; or
Video cassettes, DVDs, and CD-ROMS, if the cassettes, DVDs, or CD-ROMS are used in a course in conjunction with any of the technologies listed in paragraphs (1) through (3) of this definition.
Note that although the phrase “regular and substantive interaction” is prominently featured in this definition, it is never defined. And in the absence of any definition, the Department’s Office of Inspector General took it on itself to define the phrase. The extraordinary confusion around the definition of RSI coupled with the OIG’s findings against both Saint Mary-of-the-Woods and WGU meant that there was considerable pressure on the Department to define RSI in this round of negotiated rulemaking.
What is being proposed? (pages 53-63 and 288-290)
The proposed definition of distance education reads as follows and can be found on pp 288-290 of the draft document. Note that for the first time there is a definition of three key terms: instructor, regular, and substantive.
Distance education: Education that uses one or more of the technologies listed in paragraphs (1)(i) through (1)(iv) of this definition to deliver instruction to students who are separated from the instructor or instructors, and to support regular and substantive interaction between the students and the instructor or instructors, either synchronously or asynchronously.
The technologies that may be used to offer distance education include —
One-way and two-way transmissions through open broadcast, closed circuit, cable,microwave, broadband lines, fiber optics, satellite, or wireless communications devices;
Audio conferencing; or
Other media used in a course in conjunction with any of the technologies listed inparagraphs (1)(i) through (1)(iii) of this definition.
For purposes of this definition, an instructor is an individual responsible for delivering course content and who meets the qualifications for instruction established by the institution’s accrediting agency.
For purposes of this definition, substantive interaction is engaging students in teaching, learning, and assessment, consistent with the content under discussion, and also includes at least two of the following—
Providing direct instruction;
Assessing or providing feedback on a student’s coursework;
Providing information or responding to questions about the content of a course or competency;
Facilitating a group discussion regarding the content of a course or competency; or,
Other instructional activities approved by the institution’s or program’s accrediting agency.
An institution ensures regular interaction between a student and an instructor or instructors by, prior to the student’s completion of a course or competency—
Providing the opportunity for substantive interactions with the student on a predictable and regular basis commensurate with the length of time and the amount ofcontent in the course or competency; and
Monitoring the student’s academic engagement and success and ensuring that aninstructor is responsible for promptly and proactively engaging in substantiveinteraction with the student when needed, on the basis of such monitoring, or uponrequest by the student.
What is different?
There’s an awful lot different in the proposed definition. To begin, there are minor tweaks to the language found in the first part of the definition, the technologies that can be used to offer distance education. These changes are minor and really just serve to update the types of technologies that are currently used and will likely be used in the future. The most important changes have to do with the definition of instructor, regular, and substantive.
If you go back and look at the OIG’s audit of Western Governors, you will find that a key issue raised by the OIG was whether or not WGU students were taking classes taught by instructors or were they receiving academic instruction from non-qualified individuals like coaches or advisors. This confusion resulted, in part, from the regulations’ lack of a definition of instructor. The proposed regulations attempt to resolve that problem by defining an instructor as someone that an institution’s accrediting body recognizes as an instructor, thus booting the issue to accreditors to handle.
Here’s where things start to get really interesting. Although there isn’t anything earth shattering in the first part of this section that defines substantive interaction as “teaching, learning, and assessment, consistent with the content under discussion,” for the first time the Department elaborates that substantive interaction must include at least two of the following items: direct instruction, assessment/feedback on coursework, responding to questions about course/competency content, facilitating group discussion on course/competency content, or any other instructional activity approved by an institution’s accreditor. For the first time, the proposed regulations would clarify in regulations what constitutes substantive interaction.
And now comes the part of the proposed regulation that was both the most difficult for the subcommittee to agree on and what almost torpedoed consensus—how regular is regular interaction.
Previously, in its audit of WGU, the OIG defined regular as “occurring with some reasonable frequency considering the school-suggested length of the course” and went on later in the audit to admonish WGU to “ensure that the school-defined academic year will include at least 30 weeks of instructional time and each of the weeks will include at least 1 day of regularly scheduled instruction or an examination.” And although this might be a perfectly reasonable definition of synchronous courses, it can quickly begin to break down when dealing with asynchronous courses, especially flexibly paced programs like those found at WGU and other institutions offering competency-based education.
Let’s take a look at how the proposed regulations would treat regular. After a great deal of back and forth, the Distance Learning and Educational Innovation Subcommittee settled on two possible criteria—substantive interactions on a “predictable and regular basis commensurate with the length of time and the amount of content in the course or competency” OR an instructor could monitor the student’s engagement and success and “promptly and proactively engaging in substantive interaction with the student when needed, on the basis of such monitoring or upon request by the student.”
If you are an eagle-eyed reader who geeks out over federal regulations and the possible legal ramifications of punctuation and conjunctions, then you’ve noticed that the consensus language approved by the negotiators and before us today changed that or into an and. This critical change was literally made with seconds to spare before the consensus clock ran out. And that seemingly small change could have a rather outsized impact.
What is the Department’s rationale for the proposed changes?
In an epic example of understatement, the Department explains that one rationale for the proposed changes comes from
“Ambiguity with respect to this phrase [regular and substantive interaction] has complicated the Department’s enforcement of the law through the resolution of audits or program reviews.”
The Department also offered, as a rationale for the change, that the lack of clarity in the current definition of distance education has prevented some institutions from
“using certain innovative technology or pedagogical techniques in online programs for fear of being found out of compliance.”
Also of note in the explanation of the Department’s rationale for the proposed changes are two places where the Department highlights how the subcommittee and the committee diverged from the Department’s proposed language for defining instructor and substantive interaction. In the case of instructor, the Department originally proposed using “instructional team,” but the subcommittee could not agree on the extent to which subject-matter experts should dominate those teams as opposed to other staff, so instructor was used instead. And in the case of substantive interaction, the Department originally proposed defining that as “related to the course material under discussion,” but the committee opposed that language because it did not specifically address teaching and learning.
What is our opinion?
WCET is pleased to see that there is finally a fairly clear definition of regular and substantive interaction given how significant that phrase has become in determining a course’s Title IV eligibility. The proposed regulations’ definition of instructor is useful and by acquiescing to the accreditor’s standards will hopefully diminish any confusion. It is also in line with how the Department handles several other issues in more recent regulations where they defer to the institution’s accreditor.
As for the definition of substantive, we believe the proposed definition is a great improvement on the current lack of regulatory definition. We would like to see the Department provide some clarification. For example, are substantive activities meant to only be applied at the course or competency level or are they meant to be applied at the instructor level? The answer is more than a matter of semantics. If the regulations are applied at the instructor level and not the course/competency level it could effectively exclude some of the instructional aspects of unbundled faculty models. (Instructors who serve as assessment experts could be excluded from the definition if the Department means to define this at the instructor level.) It appears that the Department means to define substantive at the course level as it refers to the inclusion of “instructional activities” and gives as a rationale the potential for such activities being “as effective or more effective,” but clarity on this point is needed. And perhaps even more importantly, do substantive activities have to be initiated by the instructor (which seemed to be the Department’s interpretation in the past) or can they be initiated by students?
Of greatest concern to WCET is the last second change in the proposed definition of regular—the change of or to and. Under the proposed definition of regular, distance education must both provide opportunities for substantive interaction “on a predictable and regular basis” as well as “promptly and proactively engaging in substantive interaction” when needed or requested by the student. For institution’s offering flexibly-paced instruction like what is often found in competency-based education programs, the proposed definition effectively shackles any distance education coursework to a time-bound model that may not be appropriate for the student, course, and program. Rather than eliminating confusion and recognizing the growth in a variety of new types of educational programs, the proposed language would continue to require institutions to adhere to a schedule that may be inappropriate for the modality of the course and its students. WCET would like to see the Department change the languages back to that which came out of the subcommittee and return the or in between (4) (i) and (ii).
Why you may want to comment
WCET will be asking the Department to not only provide clarification around key aspects of the proposed distance education definition but will also be requesting that the Department make that key change of and to or as discussed above. Given the ways in which the Department’s Office of Inspector General has used this section in the past when auditing institutions, we believe many institutions will want to weigh in on these proposed changes, especially the proposed definition of regular interaction. If history is any indicator (and since I’m a historian, I think it is), the OIG could rely heavily on any changes to the distance education definition in future audits which could mean hundreds of millions of dollars on the line for audited institutions.
Who Should and How to Comment
Anyone can comment on these proposed regulations during the Department’s comment period. Institutional personnel, program personnel, and private citizens can all comment. If your institution offers distance education and/or direct assessment programs, you should strongly consider commenting on the proposed regulations. As we have seen with both Saint Mary-of-the-Woods as well as Western Governors University, sanctions for not following these regulations can be hundreds of millions of dollars.
Whether your institution plans on commenting or not does not impact your right to comment. And this is one case where often times volume may count over substance. The Department pays attention when there are multiple comments on the same topic. However, please be aware that if you are commenting as a private citizen you cannot use your institution or organization letterhead but you can supply your name, title, and employer as context.
Directions on how to comment appear in the “Addresses” section of the notice of proposed rulemaking. You can submit comments through the Federal eRulemaking Portal as well as via postal mail or commercial delivery. The Department will not accept comments submitted by fax or email nor will it consider comments submitted after the comment period closes. To ensure that your comments are taken into consideration, remember to include the Docket ID at the top of your comments. The Department also urges that any electronically submitted comments be submitted in Microsoft Word. All comments must be submitted by May 4th before the 32-day comment period ends.
What Should You say?
As a former state regulator who had to sift through public comments, I can attest to how mind numbing it can become after a while. Comments that are personalized as opposed to form letters get much more attention. Tell your story. Who are you? How will these regulations impact you and your students? Why do you care? Focus your comments on what would have the greatest impact on both you and your students and explain how they would help or hurt you, your institution, and especially your students. And as frustrating as all of this may seem, keep your cool and be respectful. It’s possible that if left to their own devices, the poor bureaucrat reading and responding to the public comments might very well agree with you but not be in a decision-making position. There’s enough partisan punditry and bullying making the rounds this election year already. Finally, make suggestions on how the regulations can be improved, even if it is just requesting further clarification. Again, as a former state regulator I can attest to how much we appreciated it when someone took the time to make helpful recommendations instead of just telling us everything they thought we did wrong.
Like the previous buckets of proposed regulations that came out of negotiated rulemaking, the Department is fast tracking these regulations by keeping the public comment period only open 32 days. The comment period closes on May 4th so there is no time to waste. Once the comment period closes, the Department will review and respond to all relevant comments and publish the final regulations which, unless considered emergency regulations, will go into effect July 1, 2021. Make sure to keep an eye on WCET Frontiers for more information on these regulations, federal higher education policy, and the impact the 2020 presidential election might have on distance education. And, you can always reach out to WCET staff for further information or clarification.
We’ll be posting the second half of our analysis of the proposed regulations this coming Monday so check back to see what’s happening with direct assessment, competency-based education, correspondence education and Title IV financial aid, and the credit hour. And if you aren’t already registered for WCET’s Virtual Policy Summit where we’ll be talking about this and many other timely regulatory and policy topics, you can still do so here.
4 replies on “New Regulations Review #1: Regular & Substantive Interaction”
[…] For a more comprehensive review of how we got here, check out all of our blog posts on the 2019 negotiated rulemaking process, here. You can also read the first half of WCET’s analysis, the proposed changes to the definition of distance education, here. […]
[…] is the third and final part of WCET’s analysis of the proposed rules. Part one of our analysis details the proposed changes to the distance education definition, including regular and […]
[…] Davis, V. (2020, April). New Regulations Review #1: Regular & Substantive Interaction (Blog Post). Retrieved from https://wcet.wiche.edu/frontiers/2020/04/03/new-regs-review-1-regular-substantive-interaction/. […]
[…] Fools!). Back in April, WCET published three blog posts outlining the proposed regulations on April 3rd, April 6th, and April 13th. I know that seems like a lifetime ago but many of us have been […]