Department of Ed Change May Result in More Institutions Needing Distance Education Approvals from Accrediting Agencies

We are just now figuring out that both accrediting agencies and institutions may have more work ahead of them in meeting federal requirements regarding oversight of distance learning programs.

Sometimes at first look, we don’t fully comprehend the impact that a change in regulation or Department of Education (the Department) guidance might have out in the real world. And sometimes even with a second look, we might not fully comprehend that impact.

While we do not have all the answers, we thought it was important to highlight an issue brought to our attention and which has raised some important questions about accreditation and distance education.

The Change

In brief, the Department rescinded previous guidance regarding when an institution needed to seek institutional accreditation approval for offering distance education programs. Still in place is the requirement that the accrediting agency itself needs to have distance education as part of its “scope of recognition.”

• The rescinded guidance: If an institution offered more than 50 percent of its courses via distance education, had more than 50 percent of its students enrolled in distance education, or offered more than 50 percent of an educational program via distance education, its distance education programs were required to be evaluated or approved by an accrediting agency with distance education in its scope of recognition.
• The new guidance (emphasis added): “…a program offered in whole or in part through telecommunications is eligible for Title IV, HEA program purposes if the program is offered by an institution that is accredited by an agency that has accreditation of distance education within the scope of its recognition…before an institution offers any distance education programs that can be eligible for Title IV, the institution must be evaluated and accredited for its effective delivery of distance education programs by a recognized agency that has distance education within its scope of recognition.”

Cheryl Dowd (WCET’s Senior Director, Policy Innovations) actually covered the rescinded guidance and new guidance in January. The rescission of the Department’s 2006 guidance from Dear Colleague Letter GEN-06-17 was announced in the Federal Register last August. The new Guidance on Accreditation and Eligibility Requirements for Distance Education was released by the Department on January 19, 2021. This date was last full day of the previous presidential administration. When we covered the guidance in January, we were simply reporting on this new guidance. Since that time, we have obtained more information than was originally shared with the guidance.

A Little Background

The change was made due to a review required by President Trump’s Executive Order 13891, which sought to ensure that “Americans are subject to only those binding rules imposed through duly enacted statutes or through regulations lawfully promulgated under them…”

As a result, the analysis showed that the now-rescinded guidance conflicted with 34 CFR 668.8(m), which states:

(m) An otherwise eligible program that is offered in whole or in part through telecommunications is eligible for title IV, HEA program purposes if the program is offered by an institution, other than a foreign institution, that has been evaluated and is accredited for its effective delivery of distance education programs by an accrediting agency or association that—

 (1) Is recognized by the Secretary under subpart 2 of part H of the HEA; and

 (2) Has accreditation of distance education within the scope of its recognition.

Yes, it is ironic that an Executive Order meant at limiting bureaucracy may have added to it.

A Few Questions

In conversations with knowledgeable accreditation and institution personnel, we now understand that there are several questions about this guidance. Additionally, depending on the response to those questions, the impact could be substantial. A few of the questions that we have:

• Does this mean that every program that has even one course that uses distance education will need to have approval from their accrediting agency for that program?
  • We don’t think so. We think this just expands the number of institutions requiring distance education approval for the institution. But, we are not sure and it will be good to ask.
• Does the “in whole or in part through telecommunications” mean that courses using any distance education variation are now considered distance education and creates the need for approval of that program? Part of the distance education definition is “to deliver instruction to students who are separated from the instructor or instructors.” Possible variations that could be included: blended learning, hybrid learning, hyflex learning, flipped classroom, adaptive learning, and anything that allows that student / instructor separation.
  • We don’t know.
• If an institution decides to change the modality of just one course within a program, does it need accreditor approval before making this change?
  • We don’t think so, but it will be good to ask.

Accreditors Authority Regarding Department Minimum Requirements & COVID Flexibilities

The Department provides minimum requirements that must be addressed by accreditors in order for institutions to participate in Title IV HEA programs. The institutional accreditors have the authority to impose more rigorous requirements. The Department’s guidance suggests that after approval by the accrediting agency, an institution may offer distance education programs without the need for further approval, unless delivery of a program exceeds 50% by distance education or the institution delivers more than 50% of its programs through the distance education modality. We have learned that institutional accreditors may wish to impose further approval earlier than the Department’s guidance indicates.

Additionally, the Department’s new guidance addressed that in response to the national pandemic that the Secretary exercised authority under the HEROES Act, 20 U.S.C. § 1098bb that the flexibilities with respect to institutional eligibility for distance education for purposes of Title IV that will continue until the national emergency is rescinded. However, these Department flexibilities as originally offered acknowledged that any flexibilities were subject to the requirements of the accreditors. We have learned that several accreditors are no longer extending these flexibilities.

What’s Next?

Please tell us if instances where you have run into this issue. And submit questions that you may have about the impact of this change.

We will compile questions to ask the Department. We will report the results to you.

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