2022 Digital Learning Policy Preview, Part 2:  Federal and State Rules

The self-proclaimed “policy nerds” at WCET and WCET|SAN began looking forward to 2022, and we started to marvel at all the policy issues for digital learning in higher education that will be in play this year. Some significant changes for online and distance learning with significant implications for student consumer protection are on the horizon. With that insight, we wish to give you a preview of “coming attractions” of actions that will (or may?) occur in the coming months.

The first post in this series focused on the main issues with the current U.S. Department of Education’s Negotiated Rulemaking process that started last week. This second post highlights other issues (outside of rulemaking) at both the state and federal level that will be considered or pursued in 2022. While there are many other issues, we limited ourselves to the issues that will have an impact on the digital learning community and the protection of our students as consumers.

This set of coming attractions are wide-ranging. So, find your Junior Mints and enjoy this second feature in our twin bill of Frontiers posts on what we need to watch in 2022.

Regular and Substantive Interaction
By Kathryn Kerensky

For purposes of eligibility for federal financial aid, Congress created a distinction between “distance education” and “correspondence education.” A critical component of that distinction is “regular and substantive interaction” (RSI), which is required for a course to be classified as distance education rather than correspondence education. For federal financial aid eligibility, this is important because institutions offering more than 50 percent of their total course offerings via correspondence or enrolling more than 50 percent of their students in correspondence courses are not eligible to participate in Title IV financial aid programs.

On July 1, 2021, the Department of Education’s definition of “regular and substantive interaction” went into effect. Until then, those terms were not well-defined by regulation, and guidance regarding the meaning of those terms was incomplete. For more on the history of the interpretation of RSI, you can review the analysis conducted by Van Davis and Russ Poulin back in 2016.

However, with these new definitions, it was the intent of the negotiators and the Department to provide for some flexibility when it comes to a variety of instructional models. WCET and SAN provided an updated interpretation of the new definitions in a blog post from August 2021.

In talking to members, we also encountered confusion about some provisions among institutional personnel and we have not heard of any members who have had the new wording applied to them in a Federal financial aid review. To seek clarification, WCET and SAN submitted a letter to the Department last summer with common questions and concerns.

On “regular and substantive interaction,” WCET submitted questions to the Department seeking clarifications on some provisions and urged the Department to issue guidance.  

When it comes to the future of these requirements, WCET and SAN do not expect the Department to change or eliminate these definitions. Instead, we may see the Department issue guidance on the definitions, such as in the form of “Dear Colleague” letters. In the preamble to the final regulations and in webcasts, department staff have provided insights into how the department interprets certain elements of the definitions, such as direct instruction. So, now that the regulations have been effective for several months, we anticipate that and urge the Department to release official guidance to interpret and clarify some of the regulatory expectations of institutions.

We will keep you updated on further announcements from the Department and will perform additional reviews and analysis as necessary. We recommend that you review the current interpretations, evaluate your institution’s policies and procedures that implement these requirements, and check with your institutional or programmatic accreditors if you have questions on accreditors’ guidance relating to RSI.

Online Program Management
By Russ Poulin

In 2020, Senators Warren and Brown questioned the recruiting techniques and services provided by some Online Program Management (OPM) companies. They requested information from five companies. On January 14 of this year, Senators Warren, Brown, and Smith renewed their concerns and submitted additional questions to eight companies about their OPM practices, contracts, and financial models.

In February of 2021, Senator Patty Murray, the top Democrat on the Senate’s Education Committee, requested that the Government Accounting Office conduct a review of OPM practices. It is unclear when that report will be released, but it seems reasonable that the Department may wish to have that information so that it can take action in 2022.

But, what can the Department do? Their main options are:

• Congressional action. Certainly, there are Senators very interested in pushing legislation on this issue. However, without 60 votes in the Senate, it is unlikely to pass.
• Negotiated rulemaking. The Department has been extremely busy with the rulemaking process. A new round of rulemaking could be called, but there is some speculation that the Department’s staff is overtaxed with following through on the current rulemaking and the aftermath of the rulemakings that were conducted last year.
• Issuing guidance. Bob Shireman, formerly with the Department of Education and now with the Century Foundation, provides insights on one action that could be taken in his 2019 opinion piece. He cites a 2010 memorandum on “bundled services” and remuneration for recruiting that was issued by the Department. The Department could simply issue an updated opinion. Shireman suggests, “enforcing the statutory ban on incentive compensation to contractors.” That could have a great impact on existing and future OPM contracts.

It will be interesting to see when the GAO report is released and what actions follow from  those findings.

Veterans’ Housing Allowance
By Cheryl Dowd

Veterans studying under the GI Bill are eligible for a Monthly Housing Allowance (MHA) while pursuing their studies. The pandemic introduced complications for veterans who transitioned to remote learning and there are new requirements for all veterans to verify their on-going enrollment in a college or university.

Reductions for Veterans Studying Solely at a Distance
The Post-9/11 Veterans Educational Assistance Improvements Act of 2010 directs that housing benefits for veterans be reduced if the student participates in their courses solely by distance education. This became a problem when, due to the pandemic, institutions were forced to transition to distance technologies for remote courses and all students would receive the reduced housing allowance for distance students. In response, Emergency Federal legislation was passed in March 2020 to authorize the Veterans Administration (VA) to continue full housing benefits for programs that have been converted to distance education (e.g., remote learning) due to an emergency or health-related situation. This emergency flexibility was extended in recent Federal legislation to continue the benefit through June 1, 2022.

As a result, veteran students whose courses are shifted to remote education due to the pandemic can continue to receive full housing benefits despite participating in courses solely through distance education. The legislation, however, does not apply to the student who simply makes the choice to enroll in courses solely by distance education.

Veterans who take all their courses at a distance understand that the difference in housing allowance rates can be significant. If veterans were forced to take the reduced Monthly Housing Allowance, the GI Bill Comparison Tool guides the veteran as to how much they are eligible for their location. For fully-distant students, the amount is fixed by law at $871 per month. As WCET reported recently, this amount is roughly one-third of the MHA that a student living in a higher cost-of-living area would receive. Meanwhile, a student taking at least one face-to-face course in Northern Virginia would receive $2,544 per month in housing allowance.

Veterans participating in courses solely by remote education (which, for this purpose, is officially “distance education”) due to the pandemic will continue to receive full MHA until June 1, 2022. After that time, the MHA benefit amount will return to the distinction made for reduced MHA for all veterans who participate in courses solely by distance education unless there is further legislation.

It would be great if Congress would extend this waiver for a longer term. The “brinksmanship” of extending the deadline just before an academic term leads to unnecessary uncertainty for our former soldiers, sailors, and airmen.

New Certification Requirements for Veterans
Related to continued receipt of MHA by students, institutions must be aware of certification requirements placed on the student to electronically verify their continued enrollment in school with the VA as required by Isakson and Roe; Section 1010. Failure to certify for two consecutive months will cause the VA to withhold MHA payments until the student completes certification.  This new requirement was implemented starting with non-college degree programs last August 2021 and now includes all college degree programs as of December 2021. For more information, you can review School Certifying Official (SCO) Training on the Veterans Administration website.

Taxes and Many Other Regulations for Remote Employees in Other States
by Rachael Stachowiak

2020 and 2021 pushed institutional leaders nationwide to quickly pivot to the “new normal” of remote work. In this same period, employees may have chosen to relocate out-of-state for personal or financial reasons. Regardless, employers should be aware that managing a multi-state workforce follows a similar principle to State Authorization: institutions who engage in activities outside of their primary state must comply with rules and regulations pursuant to the conditions wherever they may be operating. This includes where they have employees.

Employers should examine the local laws (state, country, and city) to review provisions affecting and protecting the remote worker. There are a range of issues including, but not limited to, workers compensation insurance, mandated postings, state specific paid family and sick leave, unemployment insurance, wage and hour laws, etc. Enter the challenge of monitoring the wandering worker.

Moving into 2022, we can anticipate that State legislatures may refocus on employment laws addressing issues adjacent and related to the ongoing pandemic:

• Creation, revision, or expansion of state specific paid sick and family leave laws,
• Permanent reform of the temporary adjustments to unemployment insurance, with the intended goal of addressing efficacy and equitable access for independent contractors, temporary, part-time employees, and others,
• And, a continued debate of mandated workplace vaccination policies, including booster shots, and extension of state specific COVID-19 leave laws.

State Authorization Reciprocity Agreement (SARA) – Processes for Policy Revisions
By Cheryl Dowd

Institutions that obtain state institutional approval for distance education through participation in reciprocity through the State Authorization Reciprocity Agreements (SARA) are subject to a uniform set of responsibilities as provided in the SARA Policy Manual. The National Council for State Authorization Reciprocity Agreements (NC-SARA) is a private nonprofit organization developed to partner with the four regional compacts (MHEC, NEBHE, SREB, WICHE) to administer SARA, the interstate agreement. SARA policy is reviewed and revised, as needed, by the NC-SARA Board of Directors, comprised of experts in higher education, state leadership, advocacy, and distance education.

During the most recent NC-SARA Board meeting that took place in October, the following actions were taken:

• The Unified State Authorization Reciprocity Agreement (UA) was unanimously reaffirmed as the guiding principles of SARA and the framework for SARA’s operational and administrative structure. The UA includes the Governing Principles of SARA and describes the roles and responsibilities of States, Regional Compacts, Participating Institutions, and the National Council for SARA.
• Policy Modifications to the SARA Manual were tabled pending further input and review: the proposed “21^st Century Distance Education Guidelines,” Branch Campuses, and Sections 8.2 and 8.3 regarding processes for modifying the SARA Policy Manual.

SARA Policy Next Steps

• A new policy revision process will be designed by the NC-SARA Board while working in partnership with the Regional Compacts, the Regional Steering Committees of the Regional Compacts, and NC-SARA staff. 
• No proposed policy changes will move forward until the NC-SARA Board has developed and adopted the new policy review and revision process.
• The NC-SARA office will share more information, including opportunities for input into the new policy process as well as current and future policy proposals, as it becomes available.

Data Privacy
By Kathryn Kerensky

Data privacy and data protection laws and regulations vary by state and by sector in the United States, with laws specific to health information (the Health Insurance Portability and Accountability Act (HIPAA)), financial (Gramm-Leach-Bliley Act (GLBA)), children’s information (Children’s Online Privacy Protection Rule (COPPA)), student education records (Family Educational Rights and Privacy Act (FERPA)), and consumer information, among others.

Since the European Union’s General Data Protection Regulations (GDPR) went into effect in 2018, there has been a trend toward more jurisdictions, states, and countries passing their own laws on consumer data protection, security, and privacy. Laws pertaining to consumer privacy continue to develop, and WCET and SAN expect to see more at the state and federal level in the coming year and the years to come.

Data Policy at the Federal Level…
Pertaining to consumer privacy at the federal level, there have been several comprehensive privacy, biometric data, and artificial intelligence legislative attempts. Additionally, on September 29, 2021, the Senate Committee on Commerce, Science, and Transportation held a hearing that centered on strengthening consumer privacy rights, including the creation of  a comprehensive federal privacy law.

On December 10, 2021, the United States Federal Trade Commission (FTC) filed an Advanced Notice of Proposed Rulemaking with the Office of Management and Budget that states the commission’s intent to “initiate a rulemaking to curb lax security practices, limit privacy abuses, and ensure that algorithmic decision-making does not result in unlawful discrimination.” Based on the date of the filing, we may be hearing more about how the Commission intends to proceed in February 2022. The FTC has the authority to regulate the data privacy and protection practices of the commercial entities within its jurisdiction.

Data Policy at the State Level…
To date, three states have passed what are considered comprehensive consumer data privacy laws, although many more states have existing data breach notification requirements and laws on the use of biometric data in place that may apply. California is considered the first state to pass a comprehensive consumer data privacy law, and in 2021, was followed by laws in Virginia (effective January 1, 2023) and Colorado (effective July 1, 2023). There are currently active bills in twelve other states. Furthermore, at least nineteen additional states have introduced or considered legislation.

The Implications for Institutions…
As with any area of state or national law, the obligations imposed by each of these laws will vary and may have their own nuances to address, and these laws may or may not apply to specific institutions. Institutions with students, faculty, and/or staff in multiple states will increasingly be challenged to remain in compliance. It is important to work with counsel to determine applicability of these legislative updates to your institution and to develop solutions and programs to meet these obligations. Monitoring the status of these proposed laws is an important key to a compliance plan for courses or programs offered in multiple locations.

Borrower Defense to Repayment
By Kathryn Kerensky

Starting in October 2021 and running through December 2021, the U.S. Department of Education held three sessions of negotiated rulemaking, with the Affordability and Student Loans Committee, during which they discussed topics related to borrower issues, including borrower defense to repayment (see 34 CFR 685.206(c) and (e) and 34 CFR 685.222). Defenses to repayment allow borrowers to seek loan forgiveness if a college or university engaged in certain categories of acts or omissions that lead to a borrower defense to repayment claim.

Borrower defenses to repayment regulations have been subject to several changes over the years, with amendments both in 2016 and 2019. The current Administration identified borrower defense to repayment as an issue for negotiated rulemaking to modify the standards and processes from the 2019 regulations. Department personnel argue that those regulations “effectively barred relief for many borrowers” who would have received relief under prior regulations.

The objective proposed by the Department during negotiated rulemaking was to streamline the regulatory requirements into a single federal standard, and the USED proposed multiple solutions to the issues with the BDR regulations that it identified. A few highlights:

• Retroactivity – the new standards would apply to all claims regardless of when the loan was first disbursed,
• Evidentiary standard – borrowers would not be required to prove they relied upon the institutional wrongdoing if a reasonable person could have been expected to rely upon that wrongdoing,
• Aggressive recruitment would be added as a category that could lead to a successful borrower defense claim,
• Misrepresentation – the USED would adopt the definition of misrepresentation, not substantial misrepresentation, as a basis for a BDR claim,
• Limitations on borrower claims – borrower could submit a defense to repayment claim so long as they still have an outstanding direct loan associated with their claim.

According to an analysis from National Association of Student Financial Aid Administrators (NASFAA), the Department shared three issues papers relating to borrower defense to repayment, which did not reach consensus. The Department will likely publish proposed language for rulemaking some time this year. If final regulations are published prior to November 1, 2022, then the rules would go into effect on July 1, 2023.

For day-by-day analyses of the Affordability and Student Loan Committee’s negotiated rulemaking sessions, you can  review the NASFAA News Coverage of Negotiated Rulemaking.

In Conclusion…

We hope that you enjoyed these “coming attractions,” and WCET and WCET|SAN will continue to inform our members and the WCET Frontiers Blog readers.

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