In case you missed it, the Department of Education finally released the last set of regulations from its epic 2019 negotiated rulemaking process on April 1st. And, no, it wasn’t an April Fool’s Day joke.

This 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 substantive interaction here, and part two details proposed changes to the credit hour, week of instruction, and calculating correspondence students here. The final portion of our analysis will be focusing on the proposed changes that will impact direct assessment and competency-based education programs. For a more comprehensive review of how we got here, check out all of our blog posts on the 2019 negotiated rulemaking process.

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.


In order to understand the proposed changes, a little background on competency-based education and direct assessment is necessary. Competency-based education (CBE) refers to a pedagogical practice where the focus is on student mastery rather than seat time. CBE can take a variety of forms, but all these share a number of characteristics:

  • Students’ progress at a pace that is appropriate for their learning since all students learn differently.
  • The curriculum is built around competencies regardless of whether or not it is tied to courses.
  • Students are able to access learning resources, including assistance from instructional staff, that is directly aligned with the competencies.

A small subset of CBE programs are classified as direct assessment program. Direct assessment programs are no longer tied to credit hours as the default measure of student learning, and although institutions offering CBE direct assessment programs provide students with learning resources and instructional support, the focus of these programs is on assessments that allow students to show proof of mastery.someone's hands using a laptop

Both general competency-based education and direct assessment programs have experienced renewed interest over the last decade as institutions have sought ways to both address college affordability as well as meet the needs of adult learners. In 2006 the Department of Education, after Congressional action, allowed students enrolled in direct assessment programs to be eligible for Title IV financial aid, but this provision went unused until 2013 when the Department approved Southern New Hampshire University’s College for America direct assessment programs. Since then only a small handful of institutions have opted to offer direct assessment CBE programs and gain the appropriate regulatory and accreditor approvals—largely because of the expense and the complexity of complying with Title IV financial aid regulations tied to direct assessment as well as continued regulatory confusion over issues such as regular and substantive interaction (most notably the Department’s Office of Inspector General’s audit findings against Western Governors University in 2017 which WCET covered in a three-part series).

In 2015 the Department created an experimental sites program for institutions offering both general competency-based education as well as direct assessment programs to allow for experimentations in aid disbursement, but the experimental site program was cancelled in late 2019. Meanwhile, educational leaders and policymakers have continued to argue that CBE can be a valuable tool in addressing educational access and affordability but was suffering from a lack of clear regulatory direction by the Department—thus it’s inclusion in the 2019 negotiated rulemaking. So what came out of negotiation for competency-based programs in general, and direct assessment programs in particular?

APPROVAL OF DIRECT ASSESSMENT PROGRAMS, 34 CFR 600.10, 34 CFR 600.20, and 34 CFR 600.21

The current regulations

Section 481 (b) of the Higher Education Act requires that the Secretary of Education must make a Title IV eligibility determination before aid can be disbursed for new direct assessment programs. Section 600.10(c)(1)(iii) currently requires that an institution must obtain the Secretary’s approval for every direct assessment program.

What is being proposed? (pages 71-79 and 293-296)

The proposed regulations in 34 CFR 600.10 would continue to require institutions to obtain the Department’s approval for their first direct assessment program but would not require Departmental approval for subsequent direct assessment programs at the same level. The Department would, however, require institutions to obtain approval for the first direct assessment offering at any additional level. For example, an institution would be required to gain the Department’s approval for a Bachelor of Science in Nursing if that program is the institution’s first direct assessment program. The institution could add other baccalaureate level direct assessment programs without seeking the Department’s approval. However, if the institution wished to add a Masters of Science in Nursing, it would be required to seek the Department’s approval. Subsequent master’s level direct assessment programs would not require Departmental approval; however, the institution’s first doctoral direct assessment program would require Departmental approval.

The proposed regulations in 34 CFR 600.20 would require the Secretary to “take prompt action” in response to any initial eligibility application or reapplication. The current regulations do not include a Departmental timeline for responding to institutional eligibility requests.

The proposed regulations in 34 CFR 600.21 bring institutional reporting requirements into alignment with the above changes by requiring institutions to report to the Department two new types of changes: (a) second or subsequent direct assessment programs or (b) the establishment of written arrangements for an ineligible institution to provide more than 25 percent of a program under 668.5(c). Notifications must be made no later than ten days after the change occurs.

What is the Department’s rationale for the proposed changes?

In short, the Departmental rationale for all of these proposed changes centers around a belief that accreditors and State authorizing agencies are the most appropriate arbiters of determining the quality of new programs.two comment bubbles Furthermore, the Department argues that the proposed regulations “reflects [sic] the Department’s intent that the Department should not block an institution’s addition of new programs except in rare and unique circumstances related to the Department’s regulatory requirements or in relation to requirements that are specifically indicated in an institution’s program participation agreement.”

Why you may want to comment

If your institution currently offers direct assessment or is interested in offering direct assessment, you may wish to comment in support of these proposed changes.


The current regulations

Although federal regulations currently include a definition for nonstandard terms, they do not include a definition for subscription based programs. Subscription based programs are competency-based education programs that charge students a flat tuition and fee rate at the beginning of each term with the expectation that students can complete as little or as much coursework/competency mastery as they wish over the course of that term. Currently, CBE programs have only two choices regarding the disbursement of Title IV financial aid: (a) they can either set a discrete period of time in which a student must begin and end work or (b) if they operate as a non-term program, they may only disburse aid after the student completes a predefined portion of coursework and a predefined period of calendar time. There are numerous challenges associated with either of these requirements. Not only do they run counter to the underlying principals of CBE, but they also limit a student’s flexibility to work at their own pace and may delay a student’s progress through their academic program. Additionally, many institutions identified significant structural and administrative challenges in disbursing aid under the current regulations.

What is being proposed? (pages 89-107 and 301-304)

The proposed regulations would add a definition of subscription based program to 34 CFR 668.2 as:

 A standard or nonstandard-term direct assessment program in which the institution charges a student for each term on a subscription basis with the expectation that the student completes a specified number of credit hours during that term. Coursework in a subscription-based program is not required to begin or end within a specific timeframe in each term. Students in subscription-based programs must complete a cumulative number of credit hours (or the equivalent) during or following the end of teach term before receiving subsequent disbursement of title IV, HEA program funds. An institution establishes an enrollment status (for example, full-time or half-time) that will apply to a student throughout the student’s enrollment in the program, except that a student may change his or her enrollment status no more often than once per academic year.

The proposed regulations would also modify the existing definition of full-time student to include provisions for subscription-based programs.

What is the Department’s rationale for the proposed changes?

In subscription-based models, students may start work on new courses or competencies at any point in the term and, in many programs, are not required to complete all academic work during that term. This is done to accommodate students who are working in flexibly-paced programs. By allowing students to start new academic work at any point in the term, students do not have to lose momentum if they finish their initially enrolled work quickly. Significantly, the Department states in its rationale that it would “prefer to allow all CBE programs to use the method, but the HEA does not provide a definition of ‘CBE’ programs on which the Secretary could rely for this purpose.” As a result, the Department’s proposed regulatory language would only apply to direct assessment programs.

Why you may want to comment

comment bubblesIf your institution offers subscription-based direct assessment programs or may be interested in using subscription-based terms, you may wish to comment in support of these programs. Alternately, if your institution currently offers or plans to offer a non-direct assessment subscription-based competency-based education program, you may wish to comment in support for a statutory definition of competency-based education. Although the Department will be unable to address your specific concerns, they will become part of the public record.


The current regulations

34 CFR 668.10(a)(1) currently defines a direct assessment program as “an instructional program that, in lieu of credit hours or clock hours as a measure of student learning, utilizes direct assessment of student learning, or recognizes the direct assessment of student learning by others.” It goes in (a)(2) to state:

Direct assessment of student learning means a measure by the institution of what a student knows and can do in terms of the body of knowledge making up the educational program. These measures provide evidence that a student has command of a specific subject, content area, or skill or that the student demonstrates a specific quality such as creativity, analysis or synthesis associated with the subject matter of the program. Examples of direct measures include projects, papers, examinations, presentations, performances, and portfolios.

Additionally, 34 CFR 668.10(g)(2) specifies that direct assessment programs cannot include for Title IV eligibility remedial coursework. Furthermore, direct assessments eligible for Title IV financial aid cannot comingle direct assessment and non-direct assessment credit/clock hour courses.

What is being proposed? (pages 129-140 and 312-317)

Negotiators agreed on a number of changes related to 34 CFR 668.10. What follows are the most significant changes:

  • The definition of direct assessment is simplified. 34 CFR 668.10(a)(1) remains the same in the proposed regulations but (2) is significantly simplified to read “Direct assessment of student learning means a measure of a student’s knowledge, skills, and abilities to provide evidence of the student’s proficiency in the relevant subject area.”
  • The complicated methodology used to equate direct assessment to clock/credit hours is simplified. 34 CFR 668.10(a)(3) is changed to simply require institutions to establish a methodology that “reasonably equate[s] each module in the direct assessment program to either credit hours or clock hours. This methodology must be consistent with the requirements of the institution’s accrediting agency or State approval agency.”
  • The requirement that institutions must explain how a student’s prior learning is excluded from Title IV financial aid eligibility. 34 CFR 668.10(b)(2)(ii) is amended to include “information about how when the institution determines on an individual basis what each student enrolled in the program needs to learn how the institution excludes from consideration of a student’s eligibility for title IV, HEA program funds any credits or competencies earned on the basis of prior learning.”
  • Expands the types of coursework eligible for funding in direct assessment programs. The prohibition against remedial coursework and “hybrid” direct assessment/credit hour programs receiving Title IV financial aid is lifted.

What is the Department’s rationale for the proposed changes?

The Department offers two primary justifications for the proposed changes: simplification and increased institutional and learner flexibility. In discussing the decision to allow direct assessment remedial coursework, the Department states it is “recogniz[ing] that co-remediation is a promising practice, and direct assessment classes may increase the number of students who can participate in co-remediation programs while taking other classes.” And in its justification for allowing “hybrid” direct assessment/credit or clock hour programs, the Department states the change will “allow institutions to provide students with more options so that learners can select the learning modality that best meets their needs.”

Why you may want to comment

If your institution currently offers direct assessment programs or is interested in offering direct assessment programs, you may wish to comment in support of the proposed changes.

Commenting on the proposed regulations

Who should and how to comment

Although the proposed changes to direct assessment and competency-based education programs are likely to impact only a small number of institutions, even those institutions not currently offering or planning to offer competency-based education or direct assessment programs may wish to comment. Online educators have long argued that our focus should be less on modality and more on student learning. The Department’s proposed changes related to direct assessment and competency-based education advance that belief.

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 consider commenting on the proposed regulations.comment final

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 to 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.
  • 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.
  • Don’t limit your comments to concerns or suggestions for improvement; voice your support of any regulations that you think will positively impact your students and institutions. It’s just as important that the Department hear support for proposed regulations, especially if those regulations are controversial.

Next Steps

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. You can always reach out to WCET staff for further information or clarification.

dates and info on the virtual policy summit, april 20-24,

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.


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Van Davis
Policy and Planning Consultant, WCET    @historydoc



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Image Credits:
Online Student Photo by Sergey Zolkin on Unsplash
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Original Keyboard Image by www_slon_pics from Pixabay


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