Publication of the Department of Education’s proposed professional licensure and reciprocity rules will be delayed until 2023.
In March we alerted you to two proposed changes to U.S. Department of Education regulations from its Negotiated Rulemaking process earlier this year. These proposals would have a great impact on the digital / distance learning world, if implemented. The proposed changes were:
Professional Licensure – Currently, institutions are required to notify students if its program meets, does not meet, or the institution has not determined that it meets the educational requirements for the state in which the student is located. The proposed rule would require the program to “ensure” that the program meets the state educational requirements, if any. To “ensure” that the program meets the requirements would protect students but is a standard that is difficult to achieve for some states and programs.
State Authorization Reciprocity – Institutions could still use a reciprocity agreement to obtain institutional approval to serve students in a participating state. However, the institution would be eligible to disburse Federal (Title IV) financial aid to students in a state only if that reciprocity agreement complies “with all State consumer protection laws, including both generally applicable State laws and those specific to educational institutions…” This adds the requirement for institutions to meet laws specific to educational institutions, which will increase student protections is some states. On the other hand, it could negate reciprocity and will likely increase the work and costs for institutions to serve students in many states.
The Breaking News
Unlike cable news networks “breaking news,” this is actually big news that we learned on Wednesday of this week. The above rules were part of proposed updates to the “Certification Procedures.” These are rules contained in the Program Participation Agreement that institutions must sign to be eligible to disburse federal financial aid.
On the bottom line you can see that the NPRM (Notice for Proposed Rulemaking, where the Department seeks public comment) is scheduled for April of 2023.
In her post last week, Cheryl Dowd said that there were so many rules in the queue that is was hard to imagine they would get to all of them this year. She was prescient.
What this means is that they will not release the proposed rules for public comment until next Spring. If they publish the final rule by November 1, 2023, the regulations will go into effect on July 1, 2024.
We will continue to follow these rules and update you.
What Have We Been Doing About Professional Licensure?
Lots.
We have been working on the behalf of WCET and State Authorization Network members …often behind the scenes.
Rulemaking
During the negotiated rulemaking sessions, we were working with two of the negotiators representing consumer protection groups. We sought to create a compromise that would work for all. Cheryl Dowd (Senior Director, State Authorization Network and WCET Policy Innovations) and I advocated for the following principles in this compromise:
If the profession in a state has clear laws or regulations regarding the educational requirements for entering the profession, the institution must meet those expectations.
The determination of whether the laws or regulations for a profession are met is made at the time of “initial enrollment” of the student.
An institution should not be held to meet the requirements where it is unable to do so. There are some states without rules or without the staff to make a determination for an institution. An institution should not be held to rules that are not there or to which the state will not engage in discussion about whether the institution is in compliance.
Students should be allowed to opt into a program. Given today’s mobile society or populations located on state borders, there are many reasons why a student may wish to enroll in a program that is unable to “ensure” that it meet the educational requirements where the student is currently located.
Engaging Professional Licensure Associations, State Licensing Agencies, and Professional Accrediting Agencies
Cheryl Dowd, has contacted many associations of state licensing agencies for different professions. She has also talked to individuals at some specific state agencies. Many of them were unaware of the proposed rules or the possible impact that it could have on their agencies.
Cheryl’s persistence helped several organizations within a health profession to coordinate with each other. Eventually, they gained a meeting with Education Department leadership.
Engaging Other Organizations
Several of the higher education presidential and leadership organizations are assembling a series of recommendations to the Department regarding the proposed rules. We contributed extensively to the wording in that letter regarding the anticipated professional licensure language.
Cheryl just returned from a meeting of the Council of State Governments and the National Council of State Legislators regarding licensure compacts that provide portability of a license to other compact member states for individuals who already possess a license from a state agency. She continually raised the issue about the need for increased communication between state licensing boards and postsecondary institutions to address portability of the education at the pre-licensure stage. We are already strategizing next steps about who else needs to be engaged.
We have presented on these issues several times, including at NASASPS – the state regulator organization. We also have talked to several other organizations. Next week, Kathryn Kerensky, Director Digital Learning Policy & Compliance and Cheryl are presenting at the National Association of Student Financial Aid Administrators (NASFAA) and then we are presenting at the Online Teaching Conference for the California Community Colleges and we will certainly raise this issue.
If you are getting the idea that Cheryl has been a bulldog on this issue, you are reading that correctly.
What Have We Been Doing About Reciprocity?
NC-SARA and the four regional higher education compacts (MHEC, NEBHE, SREB, & WICHE) have led the charge on this issue. Especially for WICHE and the compacts, we have provided input and advice.
Rulemaking
During the negotiated rulemaking sessions, we provided background information and suggestions to several of the institutional negotiators. None of them had any background on this issue.
Engaging Other Organizations
We were asked to contribute to the higher education presidential and leadership organizations’ recommendations to the Department. Again, we provided extensive suggested language for that letter regarding the anticipated reciprocity language.
We have presented on these issues several times and have talked to several organizations.
Our Take on Reciprocity
Our take has been that the proposed regulation would improve consumer protection in a few states, but will make SARA a less valuable option for several states and institutions. If states drop out, consumer protection could actually lessen. We are also sure that underfunded and low-in-personnel state agencies will be ill-prepared to handle the resulting onslaught of requests from hundreds (thousands?) of institutions.
We also wonder how the Department might enforce this rule if it were to go into effect. Let’s say that a reciprocity agreement does not comply. Will they deny aid to the students from institutions in the 40+ states participating in the agreement? We are unclear how this rule could be enforced. Due to the limitations on what the Department can regulate, it is focused on institutions but the intent seems to actually be to regulate states.
NC-SARA will soon update its policy process. And they need improved policies. Our recommendation is for the Department to work with states, the compacts, and NC-SARA to improve consumer protections through reciprocity. By doing that, protections will reach nearly every corner of the country. And that’s a better option than improving protections in just a few states.
The Department now has ample time to work with states on both these issues.
And we’re happy to help.
Our Message to Members
We’re doing lots of work behind the scenes. It’s not flashy. It’s not in the press.
We’re working to improve consumer protections for students.
WCET + Every Learner Everywhere Celebrate Juneteenth
Juneteenth, or “Freedom Day” is the oldest nationally celebrated commemoration of the ending of slavery in the United States. Juneteenth not only celebrates the freedom of African Americans from slavery, but it also is a time when our achievements are noted, and continuous self-development is encouraged. WCET and Every Learner Everywhere sought to make a Juneteenth commemorative post showcasing the strength in the American spirit to recognize wrong and set about making it right.
Juneteenth offers an opportunity to talk about this complex history and here we share reflections from WCET Executive Leadership and Every Learner Equity Advisory Board and Staff on our ideas of freedom and educational equity and how freedom has shaped our educational experiences.
To me, educational equity means creating learning environments that enable all learners to achieve their fullest potential. In order to experience true liberation, we will need to dismantle systemic racism and classism, decenter whiteness in teaching and learning, and remove structural barriers in our educational policies and practices.
Working towards equity in Higher Ed is personal for me because my hope is that we will ultimately create a more equitable and fair learning experience for the future generation of students which includes my own children.
Jessica Rowland Williams, Ph.D., Director, Every Learner Everywhere
As a first-generation college student, woman of color, and daughter of an immigrant, I lead California Competes: Higher Education for a Strong Economy with the perspective that higher education can be a vehicle to prosperity for individuals and the communities they serve. Dismantling systems that do not serve today’s students equitably is our professional (and my personal) mission. My parents did not have the opportunity to go to college. They ended up in California after leaving challenging circumstances and had to carve their own pathways to success around the systematic barriers that kept them out. For me and my brother though, my parents emphasized that college was key, and it was instilled in me that higher education opens doors, creating the freedom of choices to turn one’s dreams and aspirations into reality. They were right. The benefits of higher education have profoundly impacted my life, and I want all Californians to have this opportunity—this freedom of choice on what trajectory to take—to reach their full potential, regardless of backgrounds and circumstances. The ultimate goal for us at California Competes is one where every individual can access higher education to bolster both personal and community development, engagement, and success.
Su Jin Jez, Ph.D., Executive Director, California Competes + Every Learner Equity Advisory Board Member
When thinking about freedom and educational equity, I go to this quote from former US Secretary of Education and current managing partner at Emerson Collective Arne Duncan: “By becoming a champion country, we are answering a global call to action to focus the world’s attention on the cause of education and equal opportunity for all. A good education is one of the most powerful ways for nations to reduce poverty, become competitive and grow the economic pie for all. It’s better for individuals, for the country, and for the world when countries invest in education.” By promoting educational equity, we are positively impacting every aspect of society.
Jenni Atwood, Grants Manager, Every Learner Everywhere
As a native South Texan, I learned that Juneteenth or “Freedom Day” is a part of the state’s history. Union soldiers arrived in Galveston, Texas, with the news that the Civil War was over and slavery in the United States was abolished. In 1979, the Texas Legislature passed a bill to mark Juneteenth as a state holiday. Forty-two years later, President Joe Biden signed the Juneteenth National Independence Day Act that establishes June 19 as a national holiday that commemorates the end of slavery and honors the culture and achievements of African Americans.
Educational equity, to me, is the foundational practices, policies, and procedures of academic fairness and inclusion. Every child/student deserves access to the necessary tools and resources that will provide an opportunity to be successful in their educational journey, K-12 and post-secondary. Yet, here we are in 2022, still met with challenges every day across the digital landscape of America.
As an administrative leader at an institution of higher education that primarily serves a Hispanic student population, my role is to provide educational technology services and resources to all students regardless of race, color, or economic class. My educational experiences differed from my parents, grandparents, and great-grandparents, but we lived through the challenges and persevered. Every generation experiences educational equity, and our role is to pay it forward as leaders to make a difference for every child/student.
Rolando R. Garza, Ed.D., Director of the Center for Academic Technology, Texas A&M University-Kingsville + Every Learner Everywhere Equity Advisory Board Member
Observing Juneteenth reminds me to celebrate how far Black Americans have come since the 1860’s, but also to reflect on the work that still needs to be done. I believe that education – specifically public education – is essential for the advancement of diversity, equity, inclusion, and freedom. Furthermore, I believe that online public education helps to expand access to educational opportunity, especially for students who can’t afford to pause family, home and work responsibilities for a traditional four-year, on-campus experience.
For me, Juneteenth inspires empathy for underserved student populations, and reminds me that the onus is on institutions of higher education to better serve underserved student groups and to narrow the equity gap in higher ed. I am proud to devote my career to improving educational access and am grateful for how Juneteenth challenges me.
Shannon Riggs, Executive Director, Academic Programs & Learning Innovation, Oregon State University + WCET Steering Committee Chair, WCET Executive Council
On June 19, 1865, two years after the Emancipation Proclamation and two and a half months after the end of the Civil War, Major General Gordon Granger issued General Order Number Three in Galveston, Texas announcing the end of slavery and proclaiming, “This involves an absolute equality of personal rights and rights of property between former masters and slaves.” This proclamation, though, was not enough to end discrimination and inequality. In fact, racial discrimination became the law of the land when in 1896 the Supreme Court in Plessy v. Ferguson ruled that separate but equal facilities, including schools, were legal. This doctrine of separate but equal wasn’t struck down until almost sixty years later in Brown v. Board of Education. Yet, even then, educational discrimination remained and continues in 2022.
What does Juneteenth mean to me? For me, Juneteenth represents a powerful promise that has gone unfulfilled. Even the landmark Brown v. Board of Education has not been enough to ensure equitable education for all learners. Juneteenth teaches us that proclaiming something is not enough; we must actively work to make the promises of Juneteenth and Brown v. Board of Education a reality. Educational inequity isn’t a thing of the past; it persists. But it doesn’t have to. We have the ability to call out educational inequity when we see it and work to eradicate it. We can create an educational system where all learners have access to the resources they need to be successful. We can fulfill Juneteenth’s promise.
Van Davis, Ph.D., Service Design and Strategy Officer, Every Learner Everywhere + Chief Strategy Officer, WCET
On Juneteenth, the truth about the end of slavery in the United States was finally proclaimed in Galveston, Texas. As Van outlines above, that did not immediately end inequality. But the truth was out there and they acted on that truth. Distance and digital learning in higher education has evolved over the years to allow students to overcome the barriers of geographic and temporal separation. A truth that emerged in stark relief during the pandemic was that the digital divide barrier was much wider than we ever imagined. In particular, Black, Indigenous, LatinX, and poverty-affected students often found themselves on the outside looking in. We, in the digital learning field, have been at the forefront of knocking down barriers for years. The new truth is out there about the digital divide. It is time for us to keep acting on that truth.
Russ Poulin, Executive Director, WCET & Vice President for Technology-Enhanced Education, WICHE
Juneteenth is more than an observance of freedom. It’s also a time to share the experiences of those who fought to seek true freedom for future generations. The celebration of Juneteenth acknowledges hard history while also empowering students to be advocates for change. Together we’ll continue to celebrate the freedom of African Americans, honor our achievements, and catalyze change in dismantling systemic racism and removing structural barriers to educational equity for every learner, everywhere.
Thank you to those featured in this post for sharing your reflections on this day.
To learn more about Juneteenth, we recommend visiting the Smithsonian’s National Museum of African American History & Culture’s Juneteenth webpage for more information and resources.
Next week we observe Juneteenth – a day to commemorate the announcement in Texas that slaves had been granted freedom during the Civil War, a day to reflect on the true meaning of “freedom” and cultural tradition. Inspired by this, today our Steering Committee DEI Working Group presents the first of a new blog series considering the importance of equity within higher education quality assurance. Thank you for the committee for your work and thank you to Chantae Recasner from WGU for writing today’s post.
Enjoy the read, Lindsey Downs
“…American Africanism. It is an investigation into the ways in which a nonwhite, Africanlike (or Africanist) presence or persona was constructed in the United States, and the imaginative uses this fabricated presence served. …Africanism has become, in the Eurocentric tradition that American education favors, both a way of talking about and a way of policing matters of class, sexual license, and repression, formations and exercises of power, and meditations on ethics and accountability.”
–Toni Morrison, 1992 Playing in the Dark: Whiteness and the Literary Imagination
“Failing to ensure equity is a limitation in quality…”
This year the Diversity, Equity, and Inclusion (DEI) Working Group of the WCET Steering Committee decided to bridge conversations between DEI and quality. It’s an inevitable partnering as accounting for equity is an essential feature of quality assurance.
To put it plainly, failing to ensure equity is a limitation in quality. Nonetheless, any conversation about equity that centers on quality must address problematic parallels between advancing equity and diminishing quality.
We open this series as we commemorate Juneteenth, a historic benchmark in Black Americans’ journey to freedom in the United States. The timing of this is impeccable in my eyes since I read Juneteenth as a historic cautionary tale that affords a few lessons:
It reminds me of the risks of making decisions fora population and not with a population.
It exemplifies the potential failures of “improvement” efforts rooted in politicized paternalism.
It is a testament to the irony of recognition without accountability (while Juneteenth is rooted in Texas history, some Texas legislators are working incessantly to bar any race-based historical teachings. Thus, we can celebrate but we cannot teach about it).
That Black Texans received notification of their freedom some 18 months after it was declared was a foretelling of ongoing challenges with access that would befall an entire race of people throughout this country. It also is a stark reminder that, for Black Americans, freedom is more than a political ideology. It is a physical state, one in which the Black body emerges as a contested site (Hassard & Holliday, 2001). This celebration of Black Americans’ journey to freedom is thus representative and, perhaps, even a situating of Blackness as synecdoche—alluding to Morrison’s Africanistic other as representative of all that is nonwhite.
Importance of Historical Context in DEI Efforts
The socio-historical context provided by Juneteenth commemoration underpins the complexity of growing institutional commitment to diversity, equity, and inclusion efforts. Since the murder of George Floyd, a surge of efforts to center DEI work in higher education has occurred, but the jury is still out on whether these efforts are more “additive than transformative” (Mcinnis, 2020), especially when efforts are led by disempowered personnel in underfunded offices. Greene and Paul’s (2021) report on DEI Bloat in the Academy argues:
“…large DEI bureaucracies appear to make little positive contribution to campus climate. Rather than being an effective tool for welcoming students from different backgrounds, DEI personnel may be better understood as a signal of adherence to ideological, political, and activist goals.
In addition, high DEI staffing levels suggest that these programs, like many other administrative initiatives at universities, are bloated relative to academic pursuits. It is fair to wonder whether reducing administrative bloat and reducing costs would do more to promote college access and inclusion than the best efforts of any diversity officer.” (p. 14)
While the authors clearly state they are not advocating elimination of DEI efforts, they remain concerned that “colleges’ vast DEI bureaucracy has little relationship to students’ satisfaction with their college or their personal experiences with diversity.” Vast in this context is evidenced by, for example, the 163 identified DEI personnel at University of Michigan out of its total 31, 283 faculty and staff. We might disagree about the definition of vast (among other points), but what I hear from these authors is a concern about a quality return on investment for DEI staffing and initiatives. What I hear is a questioning of the relationship between equity and quality that legitimizes the need for more discussions, like this one, that link equity inextricably to quality.
Considering Quality in Online Learning Today
Quality in online learning and in education generally is variously defined and is associated with:
course/program level rigor,
institution/program accreditation and compliance,
standards for course design, and/or.
student satisfaction.
While this post is not attempting to provide a single definition of quality, it is an effort to conceptualize the term as one seeped in power rhetoric. Associating quality with rigor or academic excellence, for instance, is not an exercise in political neutrality as the formation of the academy was not a politically neutral endeavor. In fact, paramount to discourse on democratizing education to enable opportunities for all students is a critical examination of historical limitations to access and the hegemonic formation and use of race as justification for those limitations. In other words, “beliefs about intelligence and belonging, and, in some fields, the prevailing intellectual paradigms” (Posselt, 2018) are tethered to inequitable constructs about race.
Thus, as Jessica Rowland Williams of Every Learner Everywhere reminds us, we must deeply consider:
Damon Williams (2013) reminds us that since much of educational culture continues to “reflect the values, identity, and mores of dominant culture,” we must be wary of deficit model thinking which often pushes social and cultural assimilation as fundamental to students’ capacity for success in higher education. Moreover, as McKenzie and Phillips (2016) assert, teachers continually fall into the “equity traps” of deficit thinking, racial erasure, and deep belief in meritocracy. These traps are otherwise noted by Olsson (1997) as “detours” in advancing anti-racism. Deficit ideology persists despite the insights of many scholars—including Gorksi (2019), Bensimon and Malcom (2012), Harper (2010), and Kendi (2019). They acknowledge the systemic nature of racism and oppression in education and thus challenge us to frame our equity intentions as directed improvement of policies and practices and not as improvements of people and cultures—especially the people and cultures most adversely impacted by inequities.
Challenges to Equity Limit Quality
So why is it important that we explore equity and quality simultaneously in online learning? Well, the detours along equity journeys are not called out by brightly colored signs contrasting with the subtle everydayness of engineered travel routes. Instead, they manifest suddenly sometimes and microaggressively at other times. They manifest as criticisms of fiscal investment in efforts that yield little to no overall quantitative improvement; concerns about accommodating excuse making for students, which cripples their professional development; or concerns about dumbing down curriculum so that all students can succeed.
On staffing fronts, they manifest as concerns about hiring unqualified workers to meet a diversity goal. On the surface, these concerns appear quite reasonable. If rephrased, one hears the following questions: Are we proper stewards of institutional funds? Are we adequately preparing our students for today’s workforce? Are we honoring the core tenets and the fidelity of our disciplines in curriculum? Are we securing the best talent for the job? But, these questions, when used to stall or otherwise challenge equity efforts, are drenched in allegiance to ideological hegemony and racism.
Equity research across sectors reveals thematic associations of equity with concepts like “trap”, “challenge,” “difficult,” or (as noted above) “bloat.” These terms imply at least anxiety and at most recalcitrance about a move toward equity, and whether epistemological or methodological, challenges to equity limit quality assurance.
Suggested Touchstones in Our On-going “Equity is Quality” Discussion
As this conversant space is intended to be both enlightening and provocative, I offer the following touchstones as we move forward in our explorations of equity and quality.
Equity IS quality. It bears repeating. We should be ever mindful that growing equity does not decrease rigor or shortcut quality. In fact, the conceptual symbiosis suggests one cannot exist without the other: equity cannot exist without quality and quality cannot exist without equity. Where questions about quality emerge at the thought of advancing equity, we must confront the potential implicit bias informing the question and/or reconstruct conceptual understandings of equity.
WHO defines quality? – might be the most important question of all. Who defines quality? Who determines what is needed? Who is impacted by change? Whose voice is heard? In the upcoming posts, we will hear discussions of equity and quality that engage faculty perspective as well as student perspectives. While we often concede the equity imperatives in higher education are about ensuring opportunities and outcomes for students, institutional change efforts—particularly for equity—are not always communicated clearly or in a way that gives agency to faculty. As reported by AAC&U and Hanover Research, “..when it comes to equity goals, there is a gulf in certainty between faculty, deans, and directors, on the one hand, and senior administrators, on the other, with faculty most likely to report being unsure of whether their institution has set such goals.”
Equity is the work of EVERYONE. Recognizing the shared responsibility ensures quality experiences and outcomes for all members of a college/university community. Shorter-Gooden (2013) asserts inclusion work must engage institutional commitment, access and success, infused programs, and an affirming climate. This cross-sector of impact cannot be achieved by facilitated efforts of only those employees with a DEI-identified title.
It has been an action-packed year thus far on the Federal regulatory front. In January, we shared a preview of the “coming attractions” and encouraged you to grab some popcorn and watch along with us. And, while we’re only through the first half of the year, our popcorn has been refilled multiple times!
And you may want to grab some more. Like the middle of a good mystery film, we now know the players, but we are left with many questions. What regulations will come out this year? What exactly will they require? What is the impact on my students and my institution? Stay tuned to find out…
Today, we would like to share with you the current status of the 2021-2022 Federal rulemaking committees and the timeline required to develop effective regulations. Additionally, we’ll share our teaser trailer for some other issues to watch for which we believe there will be either guidance or additional rulemaking.
Although this is a spoiler alert, please consider two takeaways from this post:
First, the U. S. Department of Education is juggling many matters including 19 issues from the two recent rulemaking committees, addressing the Government Accountability Office (GAO) report on OPMs, contemplating accessibility regulations, as well as Title IX, loan forgiveness, and more!
Second, the path from proposed language to final regulation has many time-consuming steps and must follow a strict calendar process making the ability to move all rulemaking issues to final regulations by November 1, 2022, a very difficult task.
The plot thickens and along with the release of summer blockbuster movies, the Federal regulatory action will continue, and we will keep the popcorn ready!
Negotiated Rulemaking for Higher Education 2021-2022
The Department is undertaking a Herculean task if they intend to move 19 issues from negotiated rulemaking through the many arduous steps to prepare and release the issues as final regulations to meet the November 1, 2022, deadline!
In the past year, the U.S. Department of Education under the Biden Administration has held two separate negotiated rulemaking committees.
The first in Fall 2021, was the Affordability and Student Loan Committee, focused on Borrower issues and Prison Education Programs.
If you would like a recap of the full picture of the Federal rulemaking process, go to the “Quick Recap” section at the bottom of this post. Please remember, the Department has many proposed rules in the hopper and a very strict and short timeline on which to act for the rules to become effective next year. If you decide to go to the Quick Recap, come back here. Otherwise, forge ahead.
Affordability and Student Loan Committee
In brief, this committee concluded in December 2021 having addressed approximately 12 issues, depending on how you count the various aspects of Borrower Defense. This committee reached consensus on four issues, which means that the Department is obligated to forward that language (listed below) as agreed upon by the Committee:
Institutional and Programmatic Eligibility Committee
Beginning in January, the Department began its second rulemaking committee covering seven issues. Most published reviews of this rulemaking focused on Gainful Employment and the 90/10 Rule, although there were five other very nuanced issues that were also addressed. This committee concluded in March 2022, reaching consensus on only two of the seven issues:
Ability to Benefit – Clarification of how a student who does not receive a high school diploma, or its equivalent can gain eligibility for Title IV Federal student aid.
90/10 Rule – Federal regulations to implement Section 2013 of the American Rescue Plan Act to require that at least 10% of a proprietary institution’s revenue be derived from sources other than Federal educational assistance funds.
The Department is left to write five of the seven issues from this rulemaking, including two that we followed closely: Change of Ownership and Certification Procedures. We will be providing a more detailed look at these issues next week and share some of the work we have been doing behind the scenes to help support understanding of the nuances of the issues.
Issues to watch:
Change of Ownership:
Revisions to the 34 CFR 600.2 definitions of Distance Education and Nonprofit Institution. The impact of these changes is unclear.
Certification Procedures:
Section 26: The Department to designate maximum hours for which a student is eligible for Title IV Federal financial aid for gainful employment programs that lead to a license or certification in a state.
Section 32: Professional Licensure: Institutions “ensure” that the curriculum satisfies the state educational prerequisites to obtain a license where the student is located at time of enrollment in order for the program to be eligible for Title IV Federal financial aid.
Section 32: Reciprocity: Institutions must comply with all state consumer protection laws both generally applicable and those specific to educational institutions. Looking for clarity regarding the Department’s view of the parameters of a State authorization reciprocity agreement.
What is next with rulemaking?
It is important for those watching the Federal rulemaking process unfold to remember that the review by the OMB is a critical and time-consuming part of the rulemaking process.
The next step is the Department’s submission of packages of rules to the Office of Management and Budget (OMB) for economic review. That time-consuming step has begun. There is consensus language for some of the issues submitted to OMB that is linked above.
However, for issues that did not reach consensus, we are awaiting the Department’s version that was written by the Department after the negotiated rulemaking meetings concluded.
On April 22, 2022, the first package of issues was received by OMB which includes the following issues from the Fall 2021 rulemaking: Borrower Release, Public Loan Service Forgiveness, Interest Capitalization, Total and Permanent Disability, False certification, and Closed School Discharge. As of this writing, this package of issues remains under review with the OMB.
On June 8, 2022, the second package of issues was received by OMB including two issues from the Fall 2021 rulemaking: Improving Income-Driven Repayment and consensus issue, and consensus issue, Pell Grants for Incarcerated Individuals and two issues from the Winter 2022 rulemaking: Clarifying Rules on Changes in Ownership and consensus issue, 90/10 Rule.
Most issues from the Fall 2021 rulemaking have now been moved forward for OMB review. We believe that the release of the consensus issue, Ability to Benefit, from the Winter 2022 rulemaking will be submitted this summer. However, we are not clear about next steps for the remaining issues from the Winter 2022 rulemaking that did not reach consensus: Administrative Capability, Gainful Employment, Financial Responsibility, and the issue we are watching closely, Certification Procedures. You can follow submissions on the OMB website by visiting List of Regulatory Actions Currently Under Review, hovering over the “ED” column on the “Regulatory Actions Currently Under Review by Agency,” and clicking to show the actions currently under review.
What Will Be Included This Year is Unclear
Trusted experts have shared the following possible pathways for the remaining Winter 2022 issues:
The Education Department has many proposals in the hopper. Due to capacity issues in the Department and OMB, it is unclear which additional issues will be released this year for implementation in July 2023 and which will have to wait.
The Department will prioritize some issues to move forward for this year to be released as final regulations by November 1, 2022, and may hold off on releasing some issues until later in 2023; or
The Department will pursue release of multiple packages including all issues in some sort of “NPRMpalooza,” attempting to seek a final regulation release for all issues by November 1, 2022.
Pursuing release of all regulations as final by November 1, 2022, causes the effective date of the regulations to be July 1, 2023.
The Department expressed its agreement, appreciation, and a future response to findings of the May 5, 2022, U.S. Government Accountability Office (GAO) report addressing oversight of arrangements between colleges and OPMs. The report, Education Needs to Strengthen Its Approach to Monitoring Colleges’ Arrangements with Online Program Managers ultimately concluded that colleges and auditors lacked clear instructions from the Department to ensure that arrangements between colleges and OPMs were not violating the Higher Education Act (HEA) ban on incentive compensation. The GAO made recommendations to strengthen oversight of these arrangements.
An institution may use OPMs to help with the management of the institution’s online programs. These OPMs are third party contractors for which the institution contracts to receive certain services. These services can include student recruiting, program marketing, marketing analytics, course development, faculty and student support, and more. Institution’s use OPMs for degree programs and for short programs such as bootcamps.
OPMs often contract to receive a share of the tuition revenue as payment for their services or are paid on a fee-for-service basis. However, the HEA prohibits institutions from providing incentive payments. The Department issued guidance in the form of a Dear Colleague Letter in 2011 that clarified its view that institutions may provide payment to third parties for student recruiting based upon a sharing of the tuition revenue IF the payment is for bundled services for which recruiting is included and if there are other safeguards preventing abusive recruiting practices.
Because the GAO concluded that the Department had not provided clear instructions to monitor these arrangements, the following recommendations were made:
The Department to provide additional instructions for auditors in the Compliance Supplement to identify and assess possible incentive compensation ban violations. The additional instructions should provide the auditors with direction to ask institutions specifically about OPMs and assist auditors to address compensation information for the OPM staff who provide recruiting services.
The Department to provide institutions with more instructions about how they will provide the information about OPM arrangements during compliance audits and program reviews. These additional instructions should direct the institution to identify OPM contracts that include recruiting and provide the auditors with copies of the contracts that inform how the OPM staff is to be compensated.
The Department responded with their agreement to these recommendations and their intention to propose revisions to the Compliance Supplement to strengthen the oversight of the ban on incentive compensation. It is likely that we will see additional instructions and guidance for institutions that will support the Department’s enforcement of the ban. The extent to which the Department addresses revision or withdrawal of the 2011 guidance providing for an exception for “bundled service” remains to be seen. Stay tuned on this issue!
Intent to Amend Regulations Implementing Section 504 Disability Civil Rights Law
The Department of Education’s Office for Civil Rights (OCR) announced its intention to propose regulation amendments to the Department’s regulations at 34 C.F.R. pt. 104, implementing Section 504 of the Rehabilitation Act of 1973. This announcement includes a call for public written comments addressing how to improve the current regulations. Comments must be submitted by June 30, 2022 and sent to Section504@ed.gov.
The purpose of the development of amendments is to strengthen and protect the rights of students with disabilities. Section 504 of the Rehabilitation Act of 1973 prohibits discrimination on the basis of disability in public and private programs and activities that receive federal financial aid. This includes schools and postsecondary institutions. The regulations to implement Section 504 were originally implemented in 1977, forty-five years ago. The Department notes that the Department’s 504 regulations have largely been unaltered despite many other changes in the world. Therefore, there is an important need for updates to the regulations. The Department’s OCR looks forward to listening and soliciting public input including from people with disabilities to make improvements to the disability rights regulations.
Looking ahead
Although the Department is clearly hard at work, the timing and specifics of their plans are not completely clear, at this moment. However, we do believe that steps will be taken through the summer that will direct our communications with our readers. The State Authorization Network (SAN) created the U.S. Department of Education Rulemaking 2021-2022 Information Here! webpage that will continue to be updated with new information as it becomes available.
When proposed regulations are released, we hope you will consider participating in the rulemaking process by submitting a public comment. We will provide analysis of the proposed language and share key points for you to consider. The Department will appreciate public comments in support of regulations as well as comments that share the stories of concern for the impact on students. We look forward to sharing more with you soon!
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Quick Recap of the Negotiated Rulemaking Process Steps
It helps to understand the specific steps that must be accomplished and the strict timeline that must be followed to march the volumes of proposed language forward toward becoming Federal regulations. You can find details about the Department’s negotiated rulemaking documents and recordings of the meetings on the U.S. Department of Education website.
A master calendar guides the steps to reach the effective date for regulations tied to Title IV Federal Financial Aid. Generally speaking, the following steps are taken:
Announcement of intent to initiate rulemaking.
Announcement of the issues to be addressed along with request for nominations for the rulemaking committee, which should include:
Key stakeholders affected by the designated issues.
Subject matter experts regarding the designated issues.
The committee meets, typically, for a full week each month over three months. The meetings are streamed, for the public to view.
During the final day (or so) of week three, the committee votes on the proposed language.
Consensus is the goal for the voting, which means 100% agreement on the language.
If consensus is met, the language can move forward as proposed regulations subject to public comment.
If there is no consensus, the Department may write the regulations and release proposed regulations subject to public comment.
The Department must analyze the public comments.
Final regulations released by November 1, 2022, will become effective July 1, 2023 (for the financial aid year).
Final regulations released after November 1 will not be effective until the July 1, 2024.
*Please note that the Department must consider the time required for the Office of Management & Budget (OMB) to review the proposed regulations for economic impact before they can be released as proposed regulations subject to public comment AND the OMB must review the final regulations before they can be released to try to meet the November 1, 2022, deadline.
WCET Frontiers is happy to again welcome Kara Monroe, President and Founder of Monarch Strategies LLC to continue her article series on leadership in higher education digital learning.
In April and May, I had the opportunity to do a type of SWOT (Strengths, Weaknesses, Opportunities, Threats) analysis with three different groups of higher education colleagues. These groups represented more than 50 people in jobs ranging from institutional level managers to CEOs of national policy organizations. One of those groups was the WCET Steering Committee.
Each individual SWOT analysis took place with their specific group and the separate groups did not know there were others completing similar exercises. I did these as a part of different client agreements and the exercise just seemed to fit naturally into the flow of what the group wished to accomplish meaning I didn’t have an intention to study this particular topic when I used this exercise the first time.
While the sample size is still somewhat small, the themes that have begun to emerge are clear. In this month’s post, I want to share some of those themes as well as a few of the intricacies of the conversations with you. And, as I want to end the post on a high note, we’ll start first with the threats, then go to the weaknesses, and we’ll end more positively with the opportunities and the strengths.
As we begin, I want to revisit the purpose for this series of articles briefly. COVID was a massive, shared experience and we should – both individually and collectively – learn from our experiences. The purpose of this series is to examine what we’ve learned from COVID – predominantly as higher education institutions. Since we’re likely at the midpoint of the series, today’s post can serve as our reflective midterm exam.
What wasn’t working before COVID that still is not working well today?
To prompt the identification and discussion of threats, I posed this question: “What wasn’t working before COVID that still is not working well today?” These are things that while they may look different now than they did before the pandemic began, they were major obstacles before COVID and still remain major obstacles today.
Institutional Trust In Their Employees
This concept came up in all three groups. When COVID began, organizations had to scramble to provide all of their employees with a safe way to work which generally meant sending them home. In a lot of higher education institutions this even meant packing up the computer on their desk and sending them home with that computer. As one participant said, “They wouldn’t buy me a laptop because they thought it would get destroyed and here I went with my entire PC, monitor, keyboard, and mouse. They had no choice but to trust me.”
IT Tools was not the only place this conversation came up. It also centered itself in the work location, work hours, and work structure. Employees who worked from home for months (or years) are now expected to be in the office daily, even if they are still serving students remotely because it’s how students prefer to be served. Many participants in these conversations felt it ridiculous that remote work arrangements that had been made before COVID, where employees could work from where it made the most sense for them on a specific day, are now being replaced by all or nothing in office arrangements.
Infrastructure For Support
The infrastructure – from IT to Human Services – got a lot of attention during COVID and in some places did improve. However, many faculty who grew infinitely more comfortable using technology during COVID are now returning to classrooms that lack the basic tools to allow them to use that technology effectively.
Furthermore, basic supports like childcare, mental health support, food, and housing received a lot of attention during COVID but in many institutions solutions were short-term at best and did not result in long term changes.
Testing
I was surprised that testing was identified in all three group’s SWOT analysis. Each group came at it from a very different perspective.
From the perspective of the WCET Steering Committee, the concerns with testing were specifically around the multitude of challenges with proctoring. On most college campuses, the volume of proctored testing has far outpaced what campus proctoring centers can handle. While many institutions used HERFF COVID relief dollars to fund digital proctoring solutions which students found convenient and which gave institutions much needed additional capacity, those funds are running low and there is no clear path forward.
Other groups praised the move by many higher educational institutions to go “test optional” for admission and to use other criteria instead. However, as standardized testing has started up in earnest again rather than giving time for this methodology of placement to more fully develop and be iterated on for improvement, some institutions are simply returning to the pre-COVID non-student-centric ways of requiring exams like SAT and ACT.
What started working better in COVID that is now functioning worse than pre-COVID?
To identify weaknesses, I asked groups to think about how COVID has made them stronger and whether a “return to normal” has stagnated or even reversed that progress. As learning organizations, this should be the category that makes us the most upset.
Modality Confusion
I was a little surprised to see this come up in groups outside of the WCET Steering Committee. During COVID we had a load of “new modalities” spring up. While none of them are really new, we tried to place names on major categories of packaging instruction that hadn’t been offered previously – or at least hadn’t been used in large enough volume to categorize before.
These new modalities and changes made in existing modalities now cause confusion for faculty and students alike. And, advisors lack the kinds of tools they need to describe these modalities, along with all of the other pathways and initiatives that they have to describe to students.
Communication Silos
Communication came up in all three groups that completed this activity.
During COVID, communication was far better and without silos. This was true with the two groups focused mostly on intra-organizational communication as well as with the group that focuses largely on inter-organizational communication.
Comments during this discussion included things like “everyone just knew they had to work together” to “we had to talk to each other more because we couldn’t use body language as much” show the breadth and depth of this issue from both individual communications to communication amongst departments, institutions, and organizations.
What started working better in COVID that has now stagnated?
Recognition Mental Health Needs and Stress
It is hugely important to recognize that mental health is a challenge right now and faculty, staff, and students are overwhelmed. There were two comments that came out of the dialog with the WCET Steering Committee that I think need to be quoted directly for the broader community around this topic.
The first is specific to psychological safety in organizations. As COVID hit, one of the first things the team I was leading did was provide a safe and easy way for students to exit a learning experience if it simply was not going to work for them. When our students came back from Spring Break, we turned their world upside down and we recognized that was not going to be for everyone. We made late withdrawal easier. We made pass/fail options easier. We provided tools to help explain where these made sense for a student and where they didn’t.
From an institutional goals perspective this was countercultural to what our long term aims were – we were trying to turn around a culture that had, for many years, told students, “Don’t fail, drop the class.” We had actively tried to change that culture to “Stick with the class and keep learning. We’ve got your back if you have to retake it.” But, in COVID we recognized that might not be the responsible thing for student mental and physical health so we made both paths easier. This quote summed that up beautifully. “During COVID there was a lot of accountability on faculty and institutions for students to feel safe. Now policies have less grace than they did during COVID.”
Broadly speaking, I think the quote below from another member of the Steering Committee summed up many of the challenges that colleagues across all three groups shared in these exercises. How our institutions are not always keeping people – whether that be students, faculty, or staff at the forefront of our decision making as we’ve run quickly to “return to normal.” That person said, “A return to normal is a return to practices that were not learner centric and had less emphasis on learner needs.”
What started working better in COVID that continues to work better today?
It’s also important to note as we begin this category that in every single one of the more “negative” areas above, there are pockets where the challenges are not occurring. For example, one of the comments related to testing that came up as a strength in the WCET Steering Committee is that more and more faculty moved to authentic assessments instead of “bubble-sheet” style tests. While this may not have represented the “norm” across all institutions it means that at least one institution in this sample chose to keep this positive rather than returning to “normal”.
Increased Faculty Awareness and Respect for Teaching Various Modalities
Image: Photo by ANTONI SHKRABA:
When everyone had to begin teaching at a distance everyone had to at least gain a base level of understanding about what it means to teach and learn online. You could no longer rely only on your opinions or preconceptions. You now had real life lived experience.
In a lot of cases this meant the more faculty and staff learned that while there are certainly benefits to teaching and learning at a distance, there are also challenges that you have to learn to overcome.
Many faculty welcomed and actively participated in professional development to learn new technology tools and teaching methods. I have a wonderful faculty colleague who said in the first weeks of COVID she had no desire to sit in the workshop but if she was going to survive the semester she had no choice. She now loves teaching her students with Zoom and can’t believe she waited so long to learn more about how to use this tool in her courses.
While we all still catch ourselves one or more times a day saying, “You’re muted” we also got collectively better at using digital tools simply because we had no choice.
Deeper Consideration of The Importance of Belonging
While this theme came up only in the WCET Steering Committee group, I think it’s a nice place to end this article. During COVID and today, we have no choice but to understand our interdependence a bit better. From the availability of basic goods in stores to the safety of essential workers to a groundswell of support for social and racial justice – we all experienced a collective situation in COVID.
Through our shared COVID experience we all have shared language – and in this case all means people from around the world. Words like lockdown, quarantine, and vaccine have new weight and new meaning in our global vocabulary. Perhaps this global shared experience – and particularly the isolation many of us experienced during times of lockdown and quarantine – contributed to our broader understanding of the importance of belonging.
While the understanding that belonging is necessary is not universal, it is much broader than it was before COVID. We all need to continue to think about the experience of COVID helps us to drive improvement in our lives and the lives of others around us.
So What, Who Cares?
So, what do you do with all of this information? Here are a few practical suggestions.
Use these four questions in your own work team. If possible, invite a neutral facilitator to conduct the conversation. What do you learn about the current state of your institution from using these four questions and using it to design a future state for your organization or team?
What wasn’t working before COVID that still is not working well today?
What started working better in COVID that is now functioning worse than pre-covid?
What started working better in COVID that has now stagnated?
What started working better in COVID that continues to work better today?
Is trust a challenge in your organization or team? Stephen Covey’s book The Speed of Trust is a good resource if you’d like to learn more about this important concept in your team. Not ready to dive into the book? Consider asking your team members in their next one on one where they feel the institution demonstrates its trust in them and where they feel the institution demonstrates that it doesn’t trust them.
Communication played such a vital role in COVID. Here are some communication items to consider:
Have you taken time lately to evaluate your communication pathways?
Do you need to ask students about the hours of services at your office?
Should you survey your employees about what tools you are using for communication they find most helpful or what suggestions they have?
Did your institution change its testing practices for admission or placement during COVID? If so, what evaluation are you doing in order to determine the effectiveness of these tools for helping students meet their educational goals?
What are the modalities offered at your institution today? Can you describe them in less than a tweet (i.e. 240 characters?)? If not, what can you do to simplify the explanations? As leaders in educational technology and distance education, what tools have you provided to faculty, advisors, and students so that these various modalities are clear and easy to understand?
What learner centric and people centric changes were made during COVID that you’ve now reversed? Were those decisions to reverse policies and procedures based on data or on preferences of leadership? If so, how will you reevaluate those policies and procedures?
How are you actively fostering belonging in the groups and organizations that you are a part of?
I enjoyed facilitating the SWOT analysis sessions for these groups, and hope you enjoyed reviewing what we learned. While there are improvements that can still be made, and it’s never great to see progress limited, it’s important to take the time to recognize the positives as well. As the title said, it’s not all bad! I hope that you will take some time individually and/or as a part of whatever teams or groups you are in and ask yourself some of these same questions and chart a few actions to keep moving forward.
An urgent need caused the creation of the State Authorization Network (SAN) by our parent organization WCET (the WICHE Cooperative for Educational Technologies).
In October 2010, to the great surprise of many institutions and states, the U.S. Department of Education released the first Federal regulation for state authorization of distance education.
The intended purpose of the regulation was to provide important consumer protections for students participating in interstate distance education. The relatively simple statement in the original language of Federal regulation 34 CFR 600.9(c), that was ultimately vacated by Federal courts, was the catalyst to what we know now is the very complicated and everchanging landscape of out-of-state activity compliance for postsecondary institutions.
A need had presented itself! One may want to consider the words of Sinclair College founder, David A. Sinclair, “Find the need and endeavor to meet it.”
The need for SAN includes an eleven-year history rich in community development to respond to institutional compliance management for the seemingly endless fluctuations in state and federal requirements related to serving students across state lines. SAN empowers members to successfully resolve regulatory challenges to improve student protections in digital learning across state lines. Benefits of SAN membership center on timely updates, analysis, training, and member interactions. Additionally, SAN serves all postsecondary institution sectors and related organizations.
If you are a member of SAN, thank you! We appreciate your collegiality! If you are not yet a SAN member, please review our history, benefits, member endorsements, and also, please consider joining the SAN community!
History
In March 2011, Russ Poulin, who was WCET’s Director, Policy and Analysis at the time, endeavored to meet the need to help institutions provide important consumer protections through compliance with little known state and federal requirements and sought interest in the development of a new service, the State Authorization Network. Originally, the plan was to pull together systems and consortia to collaborate on strategies and to share information about federal and state regulations related to interstate activity compliance. Additionally, members were offered the opportunity to obtain training and access to experts from the newly created SAN along with support from WCET colleagues, Megan Raymond and Marianne Boeke, then from NCHEMS. SAN saw tremendous membership growth with each year of the unsettled state and federal landscape. Due to continual demand and growth, SAN developed into a sizeable organization, initiating the decision to add a full time Director for SAN, Cheryl Dowd, in 2015.
Fast forward ten years from the initial communication to April 2021, when SAN celebrated its 10th Anniversary, having grown to more than 800 institutions and organizations nationwide. The need for SAN continued though a dramatic decade of Federal court decisions, two negotiated rulemaking committees, two new versions of Federal regulations, and the creation and implementation of reciprocity for state institution approval through the State Authorization Reciprocity Agreements (SARA). During that decade, in addition to supporting members through the COVID-19 pandemic, SAN began addressing ancillary issues around compliance related to programs leading to a professional license or certification, international compliance, and employment law related state requirements regarding interstate activities.
SAN was surprised to see the state authorization saga continue in 2022 with a new negotiated rulemaking that once again raised the issues related to state authorization of distance education. With the addition of new staff: Rachael Stachowiak, Director, Interstate Policy & Compliance; Kathryn Kerensky, Director, Digital Learning Policy & Compliance; and Leigha Fletcher, Administrative Assistant, SAN is prepared to continue filling the needs of SAN members.
Member Endorsements:
Leeann Fields, Executive Director, Office of Educational Compliance (OEC); under the office of the Vice Provost for Academic Programs. University of Nevada, Las Vegas (UNLV)
How many of us working in the area of state authorization describe many of our days as running around like a chicken with our head cut off? Too graphic, yet true? I know many times, I just feel aimless, bouncing from one aspect of this area of compliance to another.
What does SAN do for me? It gives me focus. It gives me clarity and a deeper understanding of the issues. SAN helps me with organization and strategies. Most of all, SAN lets me know that I’m not alone.
Being an N of 1 working on SARA at a University with over 3,000 employees, the isolation can feel very real at times. It’s not like being in a Registrar, Financial Aid, or Admissions office where there are a number of colleagues working and applying regulations, other people you can go to and ask questions. I have an office with NO other people… Ahhhhhh, except I have SAN! Thank you SAN for being there for me! You are truly like another full-time employee (FTE) that I can turn to on a regular basis to ask, share, and yes, even socialize with at times. You understand my issues, my frustrations, and even celebrate the small wins with me, which are starting to happen more and more. You are a safe haven to share, and you help me problem solve. I appreciate the feeling you create, letting me know you are there for me and I’m not alone.
Thank you SAN!
Katie Hoffman, Project Manager, Office of Assessment & Accreditation Support. University of San Francisco – California
SAN has been absolutely essential for me as I learned to navigate the complex world of compliance on the state and federal levels. In addition to its robust web resources for state authorization and related issues, (I frequent the section on professional licensure), SAN helps keep me in the loop on changes to federal regulations that affect my institution. Through SAN’s lively community discussion platform, WCET MIX, I am in-tune with issues common to other IHEs, and I feel welcome to ask questions of the members. Overall, SAN prepares its member institutions to be well-informed on matters of compliance when seeking to offer distance education across state borders, and most importantly, it prepares them to offer education that is centered on the students’ interest.
Benefits of SAN
SAN is the leader for guidance and support for navigating state and federal regulatory compliance for out-of-state activities of postsecondary institutions. Memberships to SAN are held by individual institutions/organizations, small partnerships, and large groups/systems/consortia.
Regardless of the type of membership, all staff at the member institutions or organizations are eligible to access the benefits of SAN. SAN provides expert analysis, resources and training on foundational and emerging issues, collaboration on compliance strategies, development of solutions, and evaluation of their efficacy. SAN accomplishes these benefits in the following ways:
Resources, Research, and Support:
Password-protected website — library of resources including SAN created research and external resources.
Members-Only digital community provides timely updates on emerging issues and member discussions.
SAN Monthly eNewsletter.
Direct access to SAN staff members to answer your compliance and membership questions.
Events & Training:
SAN Newcomers Experience – professionals who join SAN can complete the guided tour through the SAN website, answer challenge questions, and earn a badge.
Open Forum – Monthly Themed virtual Q & A sessions with experts.
Workshops – training at highly discounted rate for SAN members (Basics & Advanced Topics).
NASASPS (state regulator) Conference with SAN Institutions each spring – member fee and SAN only sessions.
Member Interaction:
SAN Advisory Group – member representatives to advise on the issues and interests of the SAN members.
Special Interest Teams (SIT) — Small member led workgroups created to discuss and research identified topics to prepare deliverables on the topic to the network. Current SIT topics include: Institutional Engagement and Professional Licensure Research & Disclosures.
SANsational Annual Awards for member development of high-quality compliance solutions.
Professional Development – member presentations on webcasts, monthly calls, and face to face meetings.
A network of peers from across the country, working on the same issues.
Member Endorsements:
— Terrence Scarborough, Director of SARA North Carolina. North Carolina State Education Assistance Authority – North Carolina
SAN has proven to be an enormous benefit in administering state authorization in my state.
The collaborative culture is inspiring. Members are always willing to share their knowledge and the best practices they employ within their respective organizations.
I am truly grateful that SAN is the ‘one-stop shop’ for higher education regulatory compliance.
— Susan Darlington, Associate Dean, Bucks Online. Bucks County Community College – Pennsylvania
Navigating regulatory compliance in distance education is a daunting task. As the SAN Coordinator for the community colleges of Pennsylvania, I depend heavily on my affiliation and membership with SAN. I find the monthly SAN Coordinator meetings to be engaging, beneficial, and allow the coordinators to feel comfortable asking specific questions. The SAN team is able to clarify the complex distance education rules so that I can feel confident in my work toward ensuring institutional compliance. During this time of great stress and upheaval in higher education, relying on the support and guidance of SAN has been priceless!
— Deb Maeder, Director of Digital Education and Instructional Design. Bryan College of Health Sciences – Nebraska
Our organization has been involved in SAN since 2016. When thinking back about all that I’ve learned and the benefit provided to our organization, it doesn’t seem possible that it’s only been six years since we joined. SAN has been instrumental in helping our small institution (700 FTE) to be on the forefront of all things distance education and educational regulatory compliance. Without the guidance and communication from SAN, we would not have been prepared for Professional Licensure & Certifications requirements, Digital Tax laws, Data Privacy laws both domestic and international, Secretary of State regulations and how to find them, or Regular & Substantive Interaction regulations. I could go on and on. In each of these examples, SAN support has helped our institution to be in front of the proverbial curve to ensure we were in compliance on day one of each new regulation.
SAN also provides our organization, and myself as an individual, with a collaborative community to use as subject matter experts, sounding boards, and general support in the work we do. There is no possible way an organization of any size can be an expert in all that SAN supports, but through the network of State Authorization professionals, someone is always willing to step up and help identify a direction forward. This group of professionals is able to protect proprietary knowledge, yet be supportive and open with anyone who presents a question.
As the single State Authorization professional in my organization, there is no possible way I could do my job as effectively as I do without the support of SAN staff and the SAN community.
Looking Ahead
SAN will continue to address the needs of our members and serve them with high quality services and opportunities to participate in the SAN community. SAN will remain a strong support for those new to the issues of interstate compliance by providing training, an abundance of topical resources, and access to community. Additionally, members can continue to count on SAN to keep them up-to-date on regulatory and policy changes for interstate compliance, analysis to understand the impact on institutions, and for the development of strategies to manage compliance.
For those unfamiliar with SAN, we hope that you have learned more about SAN and will consider membership. If you are interested in membership, please review the Membership webpage on the SAN website. Please connect with the SAN staff for more information!
Recently, the organization that I lead, the Digital Higher Education Consortium of Texas (DigiTex), was honored to receive a grant from Greater Texas Foundation to support a two-year project, Harnessing Course Sharing to Support Texas Pathways at Scale. The funding, in the amount of $645,405, will support a collaboration between us and the company Acadeum to assist colleges across Texas in solving the problems of persistence, on-time completion, and access to courses to assist in fulfilling guided pathways, through inter-institutional course sharing.
Greater Texas Foundation supports initiatives that increase rates of postsecondary enrollment and completion for all Texas students, with a particular focus on students who may encounter barriers to postsecondary success. For example, on-time credential completion rates continue to be a significant problem for community colleges. In fact, data from the National Center for Education Statistics in 2020 show that only 13 percent of community college students graduate in two years. In Texas, the Texas Higher Education Coordinating Board reported in 2020 that the average time to complete an associate degree was 3.9 years. This is a problem that needs to be addressed, and we offer one solution–course sharing.
One Solution
Guided pathways have proven to be one effective solution to this problem and research shows that the practices used in guided pathways programs can lead to better outcomes for students. However, many colleges, particularly small and/or rural institutions, lack access to courses needed to create and consistently fulfill in-demand pathways and support on-time completion.
This project aims to address this challenge through two primary strategies:
increase the number of high-quality, online STEM, and in-demand shorter-term courses that are a part of the existing course sharing initiative; and,
assist participating colleges in implementing course sharing strategies to ensure learners can access and complete guided pathways.
In the initial press release on the grant, Dr. Richard Rhodes, Chancellor of Austin Community College District, a project participant and DIgiTex’s home base, described the benefits of course sharing: “Community colleges hold an enormous amount of potential to be economic growth engines within their communities. We are proud to deploy course sharing to ensure that in-demand certificate and degree completion pathways can reach students in every geographic region to deliver on that growth opportunity promise.”
Course sharing can benefit any institution and student, and deserves the utmost attention.
Three colleges have joined the project as Teaching Institutions (TIs) offering courses: Austin Community College District, Houston Community College System, and Western Texas College. Another nine institutions so far will be serving as Home Institutions (HIs), and their students will benefit from courses at the TIs: Angelina College, Cisco College, Frank Phillips College, Howard College, Paris Junior College, Ranger College, South Plains College, Vernon College, and Weatherford College. Through a series of meetings with these project participants as well as data from a survey on high-need, in-demand courses, we’ve determined the initial offerings for the Summer and Fall terms. They will include courses in Calculus, Chemistry, Physics, Engineering, and Spanish.
Project Logistics
Additionally, we proposed the following success metrics for the project:
at least thirty unique courses in STEM and other in-demand disciplines will be offered through course sharing;
at least 3,600 unique students will gain access to courses needed to progress toward (and/or complete) credentials through guided pathways (we also will be tracking various student demographic metrics); and,
the average percentage of earned credits (typically 30) in one year for students at participating Home Institutions will increase three percent from the period two years prior, compared to a historical average of one percent over two years.
We also plan to share stories of the impact of course sharing on individual students’ ability to progress to credential and/or on time completion. We anticipate stories similar to a hypothetical scenario that I submitted with our proposal to highlight the potential impact of course sharing on student success.
A Student Named Jorge
Take, for example, a hypothetical first-generation student, Jorge Rivera, attending Frank Phillips College in the small town of Borger in the Panhandle of Texas. Jorge aspires to obtain an Associate’s of Science Degree and transfer to West Texas A&M University (WTAMU) to pursue a Bachelor of Science Degree with the dream of one day going to medical school and becoming a doctor, and returning to Borger to serve his community. He and his family have saved two years of expenses needed beyond the Pell grants for which he is eligible, making completion of the credential in that time period crucial to his success. The guided pathway he is on has kept him right on track.
However, the semester before his final spring term, Jorge discovers that the physics course he needs will not be offered that term. He can’t wait until the course is offered again in the fall due to lack of funds. Jorge would have to drop out to work full time until he can save additional money for college, risking becoming discouraged and/or having life events intervene and potentially never returning. Thanks to course sharing, though, Jorge and his advisor discover that a participating Teaching Institutions offers the physics course just when he needs it. Jorge quickly enrolls in the course, completes it, and earns his associate degree (the first in his family to do so) on time, transfers to WTAMU to pursue a baccalaureate degree on a full scholarship, and continues his journey to becoming a doctor!
I will follow up here in two years with a report on the impact of the project. Hopefully, through the project, we will have realized the dreams of students like “Jorge.” As we progress with the project, we are hopeful to provide more positive stories of student success.
Now your turn. Have you (or your institution) endeavored on a large-scape course sharing initiative? If so, what have you learned or what advice would you give?
DigiTex has a long history of facilitating inter-institutional course sharing, founded in 1998 as the Virtual College of Texas for just that purpose and serving all fifty Texas public community college districts and over 50,000 students. Although we have expanded our initiatives to include leading the Texas Quality Matters Consortium; supporting Open Education policy, practice, and advocacy; and other activities, facilitating course sharing – now with our partner Acadeum – continues to be a mandate. Grant funding like this from Greater Texas Foundation – our first grant in our 24-year history! – will aid us in strategic expansion of course sharing to support student success.
Last fall, WCET relaunched the WCET website. And, to be honest, Frontiers got a little jealous.
So, what else could we do except give Frontiers an update as well?
As you can see, we’ve made several design and feature changes to the Frontiers blog. Here is a quick tour of our updates! The first official blog post in the new format will be published later this week.
The blog is now housed within the WCET website, which means easier access to the posts, site content (check out our practice and policy pages!), and links to our member- only resources.
All new design elements that match with the WCET website and use our new, pretty web colors (we’re biased, we know).
The main website search filtering options will show results from
the blog,
the website,
from the wcetMIX community discussion posts, and,
other results from wcetMIX (such as our member resources).
Easier to find features of the blog such as post tags and archives.
Visually review and filter posts by blog tags.
And finally, we made sure the publication date is definitely included at the top of the post by the title.
As many of you, I’m sure, are aware, changes and updates don’t always go quite as planned.
We are going through all of our posts to verify accessibility and formatting of the content and design. We have identified some issues that occurred with the transfer, such as not transferring over alternative text with all images.
Please feel free to reach out to us at wcetinfo@wiche.edu if you have any questions about our content as we are completing the update process.
We all hope you enjoy the new design and features of the blog! From all of us here at WCET Frontiers, enjoy the read!
However, we would like to share a bit more about the rulemaking committee’s outcomes and point your attention to a few other issues that could affect serving students by distance education. We will start with a rulemaking timeline recap and close with more information about how you can be involved in the rulemaking process moving forward.
Institutional and Programmatic Eligibility Committee Timeline Recap
January 2022: The Department used the Federal Negotiated Rulemaking Webpage for all notices, recordings, initial proposal language, and transcripts through the rulemaking process.
January 2022-March 2022: Negotiators met for one week during each month to address language proposed by the Department on these issues and develop agreed upon language to address consumer protection for students and protect the integrity of the Title IV Federal Financial Aid process.
March 2022: Final voting on the seven issues.
Two issues reached consensus: Ability to Benefit and 90/10 Rule. These issues can move forward to be released as proposed regulations subject to public comment.
Five issues did not reach consensus: Administrative Capability, Gainful Employment, Financial Responsibility, Changes in Ownership, and Certification Procedures. The Department may write these rules and move them forward as proposed regulations subject to public comment.
If final regulations are released by November 1, 2022, they will become effective July 1, 2023.
If final regulations are released after November 1, 2022, but by November 1, 2023, they will become effective July 1, 2024.
Other Distance Education Related Issues to Watch
Definition of Distance Education
Issue #5 of the rulemaking addressed Changes of Ownership and Change in Control. The Department shared that this issue was important for rulemaking to address the increase in the number of postsecondary institutions converting from for-profit to non-profit status as well as changes in ownership. There is a concern that these changes present a risk to students and the proper use of Title IV Federal Financial Aid funds. The proposed language offered by the Department included a change to several definitions of terms found in 34 CFR 600.2. Proposed language was offered to amend the following terms: Additional location, Branch campus, Distance education, Main campus, and Nonprofit institution. The Department expressed their intention to clarify these definitions as they believed they were the source of confusion.
The Department proposed language for an additional section for the definition of Distance Education:
(6) Except for an additional location at a correctional institution as described in the definition of an additional location in this section, for an institution that offers on-campus programs and distance education programs, the distance education programs are associated with the main campus of the institution. For an institution that only offers distance education programs, the institution is located where its administrative offices are located and approved by its accrediting agency.
A theme of the 2019 regulations was to not regulate through definitions, and there seems to be several issues that are being regulated in this proposed section. This issue did not reach consensus noting nine dissenters. When negotiators provided the reasons for their dissent, several shared concerns about the change to the definition of Distance Education and definition of Nonprofit institution.
Negotiators inquired about use of the word “associated” when indicating that the distance education program is ”associated” with the main campus of the institution. The Department expressed desire to place distance education coming from the branch campus to be the responsibility of the main campus. Many negotiators asked for clarification and expressed concern that, if the language were to become regulation, there would need to be a delay in the implementation as currently, distance education coming from a branch campus is the responsibility of the branch campus in many states. It appears that the Department may want the location that holds the accreditation to be the location for responsibility of all distance education. The question remains–is that how the states desire to provide oversight of the distance education coming from the branch campus? If they proceed down this path, the Department will create a conflict between how states oversee these institutions and how it plans to oversee the responsibility for aid disbursement. We are unclear on the benefit of introducing this conflict between state and federal oversight.
Maximum Number of Clock Hours for Gainful Employment Programs – Section 26
You may recall that, in the previous post, we explained that Issue #6 addressed Certification Procedures. This is the certification process for an institution to participate in Title IV financial aid programs. The Program Participation Agreement (PPA) provides the terms and conditions to obtain and maintain certification.
The purpose of Section 26 is to address the appropriate length of aid eligibility in a recognized profession. The Department expressed concern in the variation of length of programs for the same occupation across the states.
The Department proposed language to place in the PPA:
….the Secretary limits title IV, HEA eligibility for the program to the lesser of:
(A) The minimum number of hours required for training in the recognized occupation for which the program prepares the student, as established by the State in which the institution is located, if the State has established such a requirement, or as established by any Federal agency; or
(B) If at least half of States license the recognized occupation for which the program prepares students, the national median of the minimum number of hours required for training as established in those States, as determined by the Secretary for the year of the effective date of these regulations and published in a notice in the Federal Register adjacent to the State in which the institution is located; and published in a notice in the Federal Register…
Issue #6: Certification Procedures did not come to consensus with six dissenting votes. The negotiators expressed concern about a variety of components of this issue. Specifically, regarding Section 26, several considerations remain unaddressed:
Negotiators were very concerned that this section would punish students who have no control over the hours required by the institution or the State.
The Department appears to be attempting to direct States to conform to a uniform structure at the insistence of the Department of Education.
It appears that the Department is not taking into consideration the decisions of the States to determine the education/training hours necessary in occupations that could have regional concerns and priorities being addressed by the state causing the variation of hours.
The national median number of hours provided in (B) will be determined only one time. What is the plan for adjustments that could be necessary in future years to meet technical and digital advancements or other timely changes?
Of greatest concern is that the proposal would set an unfortunate precedent that a student could be admitted to a program, but not be eligible for all the aid necessary to complete the program.
Again, the Department is creating a conflict between state laws and federal regulations.
For additional information about the more prevalent issues of 90/10 Rule and Gainful Employment, you may wish to review the daily Negotiated Rulemaking meeting highlights from our colleagues at NASFAA (National Association of Financial Aid Administrators).
What Can (Should) You Be Doing?
In the first blog post, we used the word “excite” in two ways. For “March Madness,” people can get “excited” or hyped-up at the anticipation. For the second meaning, we thought that the proposed language might “excite” some of our members (as in stir you to action). Here is our current best thinking on actions to take.
Politically
The Department of Education was very clear that they will not be accepting any comments until it releases the proposed regulations for the official public comment period. To publish the final version next fall (they have many that they have to publish), the Department will need to seek public feedback in late Spring to early Summer. Meanwhile, start communicating. As a benefit of SAN and/or WCET membership, members will soon receive access to a two-page synopsis that you can share with your institution colleagues.
Inform Your Leadership. It is always good to operate with the “no surprises” strategy relative to those to whom you report. You want them to hear any possible “bad news” from you first to show that you are in the know and are looking into it. You can give them the heads-up, but they will probably ask questions that will quickly lead you to the practical actions outlined below.
Notify Your Institutional Government Relations Staff. They may want to work with your Congressional Representatives or Senators especially if they are in the House Education & Labor Committee or the U.S. Senate Committee on Health, Education, Labor, & Pensions (HELP). Additionally, if you have a governor who was involved in your state joining SARA, they may be interested that a state-to-state agreement is being greatly affected by regulation.
Prepare to Officially Comment. Department personnel hope to release the language for comment in late Spring or early Summer. Stories about institutional burden will not gain much traction. Stories about negative impacts on students will be more accepted as the goal of this proposal was to protect students as consumers of higher education. It will take time to gather your thoughts and stories to comment.
Practically
For Professional Licensure: Start Assessing Your Institution’s Professional Licensure Status in Each State in Which You Intend to Serve Students. Remember, the expectation is that you can “ensure” that your program meets the educational requirements of each state in which you plan to disburse Title IV aid. There are some parts of the rules (especially around student notifications) for which we are at a loss as to what they will propose. Also, remember that you do not need to serve students in every state. You don’t need to do this right away, but you will be asked what impact these rules have on your institution and for each program. It will be good to start estimating soon.
Determine your target states. Each program that leads to licensure probably primarily targets a set number of states that contain the bulk of your enrollments. Note that the word “licensure” might be “certification,” approval,” “authorized,” or “permitted” for the profession in question. All of those terms are included under the concept of “licensure” for this purpose.
Ask the hard question. Ask the question: “do you have proof that you met the educational requirements for licensure in that profession in that state?” Assume that you have a financial aid official sitting across from you asking that question. We have heard of program personnel waving their hands in the air and saying, “we don’t have to do it.” Prove it.
Conduct scenario analyses. Given the answers to the hard question, what are the best and worst-case scenarios?
For State Authorization Reciprocity… Remember that the intent of the rule is to limit reciprocity only to the act of applying for institutional authorization in a state and any associated fees. This one is harder to estimate because it will be dependent on a variety of independent actions (by states, reciprocity agreements) in response to this regulation. Meanwhile:
What are your target states? Create a list of the states where you serve the most students.
Watch for more information from WCET & WCET/SAN on State “Consumer Protection” Laws. We will make our best estimates on a few of the “consumer protection” laws that will come into play and for how many states. We will share that information with you.
Be prepared to do some scenario analyses. For the states that you target, what additional costs might you incur? How would you recover those costs?
Send Us Your Stories
Above all, we suggest that you gather stories about students who will be affected.
If you have good stories, share them with us.
Beyond student stories, we are also interested in stories of great impact on a small institution, impact on institutions serving minoritized or rural students, or that offer other examples of broader impact on student population.
While we are for increased consumer protection, we feel that these proposed regulations overshoot their goal more often than necessary. We agree that bad actors should be driven from the higher education field, but the resulting collateral damage could be widespread. The beneficiaries will be large, well-funded institutions while smaller and growing institutions will become non-competitive.
We too will be working to try to improve the proposed language as much as possible and to understand the impact.
We will continue to keep you updated as we learn more.
The annual NCAA college basketball tournament, celebrated nationally and called the “Big Dance” or “March Madness,” began last week with great hoopla.
Simultaneously, another form of “competition” occurred – the final week of the U.S. Department of Education Negotiated Rulemaking process. Rulemaking can look like a “Big Dance” with representatives of higher education factions engaged in the negotiation tango. And it can definitely seem like madness with a chaotic race against the clock to quickly assess complex regulatory issues, amend or develop new regulatory language, and drive to reach full agreement before the buzzer on the final day of rulemaking.
Section 32: Proposed Major Changes in Title IV for Distance Ed
Proposals affect institutions enrolling students in other states for:
– Programs leading to professional licensure.
– Institutions participating in a reciprocity agreement.
This rulemaking was virtual, so we watched the rulemaking meetings on our computers via Microsoft Teams. Like a sporting event, we had to reserve tickets in advance to watch the show. Cheryl was armed with Diet Pepsi, large bags of Skinny Pop popcorn, and a bag of gummy bears. We (Cheryl, Russ, and the SAN team) found ourselves shouting at the screen to cheer on great explanations and cried foul at misstatements.
Today we share our postgame analysis and include a special review of the process of rulemaking. Some of the issues were extensively covered by the main press. And, in an unfortunate likeness to the relative invisibility of the women’s basketball tournament, digital learning issues were absent from mainstream reporting.
At the top of the scouting report are two items that will “excite” (as in stirring people to action) the distance and online community. Both of these are in what we have started calling “Section 32.” This section contains some vexing requirements (found in Issue #6 Certification Procedures), which did not come to consensus. Like Tom Brady (yes, we know that’s football), these proposals are not going way. The breakdown includes insight into:
New financial aid requirements for institutions serving students in programs leading to a professional license, and,
Institution participation in reciprocity through SARA to obtain state institution approval for interstate activity of the institution.
Federal Rulemaking Process
Department of Education negotiators vote on the Issue Paper that includes Section 32.
As we shared in January, the U.S. Department of Education began its second Biden administration rulemaking (see Department’s rulemaking website) at the start of 2022. The December 2021 announcement of the rulemaking, called the Institutional and Programmatic Eligibility Committee, provided the list of the seven issues to be addressed:
Issue #1: Ability to Benefit.
Issue #2: Administrative Capability.
Issue #3: Gainful Employment.
Issue #4: Financial Responsibility.
Issue #5: Changes in Ownership.
Issue #6: Certification Procedures.
Issue #7: 90/10 Rule.
In Winter 2022, the rulemaking committee, comprised of key stakeholders nominated by the public and then chosen by the Department, met for one week in each month of January through March. Issue papers with proposed language addressing the regulations particular to the issues were released by the Department for purposes of conversation and negotiation. The goal of the rulemaking was to address the proposed language on these issues and develop agreed upon language to address consumer protection for students and protect the integrity of the Title IV Federal Financial Aid process. Each week of rulemaking aimed to drive the negotiators closer to common thoughts on final language for purposes of voting to consensus, which is agreement by all negotiators on all aspects of an issue.
The final week of rulemaking in March was critical as the negotiators provided final comments and questions prior to voting on each issue. The drama played out on our screens as one by one the issues were resulted in “air balls” as each of the first six issues failed to meet consensus (or 100% agreement). As the clock ticked down, Issue #7: 90/10 Rule reached consensus. The negotiators huddled quickly and re-voted on Issue #1: Ability to Benefit and, like a buzzer beater, it reached consensus. Like Russ’s busted basketball bracket the final score was: two issues reached consensus and five issues did not.
Next steps in the regulatory process includes the following:
For issues that reached consensus: release of the agreed upon language as proposed regulations subject to public comment for at least 30 days.
For issues that did not reach consensus: release proposed regulations written by the Department for public comment for at least 30 days.
The Department must and will review all public comments.
General responses and any changes based upon those comments will be included in an announcement of the final regulations. A preamble will clarify regulatory intent not clearly stated in the regulations themselves.
If final regulations are released by November 1, 2022, they will become effective July 1, 2023.
If final regulations are released after November 1, 2022, but by November 1, 2023, they will become effective July 1, 2024.
There is no designated timing on the release of the proposed regulations, but we speculate late spring/early summer for the regulations that came to consensus. Even though several other issues did not reach “consensus,” the Federal negotiator was very clear that the Department expects to put out proposed regulations on these other issues. The Department was also very clear that they would not be accepting public comment on any issues until the NPRM (notice of proposed rulemaking).
The Department was very clear that they will not be taking public comments on these issues until the they release their proposed rules for the purposes of commenting.
Issue #6: Certification Procedures
The Department shared that the “certification procedures” issue focused on the development of a more rigorous process for institutions to become certified to participate in Title IV financial aid programs. To be eligible to participate in Title IV financial aid programs, institutions are expected to follow the provisions of the Program Participation Agreement (PPA). The PPA is an extensive form that provides the terms and conditions for which the institution must meet to begin and continue participation in Title IV financial aid programs. As we talk about professional licensure requirements below, note that this raises the expectations for communications with students beyond the mere notifications that were introduced in the last few years. Meeting the elements of the PPA is a more substantial responsibility of the institution for which there could be stronger consequences if the institution fails to meet any terms or conditions.
During this rulemaking, items were proposed to be added to the PPA. The currently effective regulations that your institution must currently follow are found in 34 CFR 668.14. A new section 32 was proposed to address programmatic accreditation, programs leading to a professional license or certification, and reciprocity. Although the negotiators did not fully agree (reach consensus) on the proposed language, the Department stated that they are heavily leaning toward moving forward with the language we describe below.
A Major Change to Professional Licensure Requirements
In summary, the proposed language of 668.14 (32) indicates that in each state where the institution is located or students enrolled are located at time of initial enrollment, the institution must ENSURE that each program SATISFIES state educational requirements for programs leading to a professional license or certification where the student is located.
Additionally, as a companion regulation, the Department proposed language to modify the public notifications found in 34 CFR 668.43(a)(5)(v). The proposed language would remove the “no determination made” option. Institutions would provide lists of states indicating a determination of the institution curriculum Meets or Does Not Meet state educational requirements. Although a negotiator raised that 34 CFR 668.43(c) exists and no longer makes sense given the Department’s proposed language, there was no further discussion or change regarding the direct notifications.
Professional Licensure
The new proposal:
– Better protects students.
– Requires programs to “ensure” that it meets state educational requirements.
– Leaves institutions adrift as to what to do in states or professions with unclear standards.
– Provides no path for students who have legitimate reasons to enroll in a program even if it cannot “ensure” where that student is currently located.
Core aspects of the proposed language would require that for purposes of Title IV, the institutions must do the following:
Only be able to disburse Federal aid in programs leading to a license or certification to students located in states where the curriculum meets state educational requirements. We believe that the use of the word “ensure” implies a much higher standard for the institution to possess evidence that it meets those requirements.
Provide public notifications with lists of states where the curriculum Does or Does Not meet state education requirements leading to a license or certification.
The public policy reasoning behind raising the standard for institutions serving students in other states seems justifiable to protect students who are pursuing their chosen profession based upon the education and training of the institution. However, this one size fits all approach is impossible for all professions in all states and takes away a student’s ability to choose.
If there is a knowable path for the program to be approved by the state and/or meet state educational requirements, institutions should seek that path and obtain that approval. Institutions, however, have shared the varying circumstances for some professions in some states that makes the ability to meet requirements or even know requirements impossible. We strongly object to holding institutions to an impossible standard.
Additionally, there are definite and reasonable circumstances why a student may be willing to attend an institution even though the state educational requirements are not met by the institution’s curriculum. Examples include students temporarily in a location, military students, and students who select the institution for its educational value, or students who intend to pursue a license in a location based upon workforce needs. We believe that students should be afforded the opportunity to choose.
We made remarkable progress communicating with two consumer protection-focused negotiators to develop language that provided protection to students, flexibility in states where pre-approval is unknowable, and provide for informed choice. The approach that we developed with negotiators required the institution to meet state educational requirements where available and provided for case-by-case examples to enroll students in a program that does not meet state educational requirements if the institution obtains written consent from the student who chooses to knowingly enroll in the program. This proposed language was presented by the two negotiators and supported in comments by several other negotiators. The Department rejected the proposal, commenting only they worried that allowing exceptions would lead to abuse and without providing a reason for not adopting the rest of the proposal. We were profoundly disappointed as any rule can lead to abuse, which is why the Department provides “guardrails” in enforcement.
Finally, the modification to the notifications section causes the institution to make a clear decision whether the curriculum does or does not meet state educational requirements. Removal of the “no determination made” will be challenging for institutions. If the regulation becomes effective, institutions will have to make business decisions whether or not to offer programs in certain states.
Early in the negotiated rulemaking process we provided public comment with a three-minute statement at the end of the meeting day. We urged the Department to communicate with professions and learn how requirements and approvals are provided for programs leading to a license or certification. We still maintain that there is a disconnect between professions and higher education that needs to be addressed. We hoped the Department might be willing to serve as a bridge and build regulations that are in line with state regulatory practices.
The Bottom Line
The goal of those proposing the language was to protect students as consumers. Institutions collecting years of tuition and fees for programs in licensure fields should do all they can to assure students that they can proceed in that profession. We are aware of good institutions that have fallen short in meeting that goal and this wording raises the stakes in putting aid disbursement in jeopardy if they do not do a better job.
On the other hand, the language does not account for two realities…
The proposal does not match current state regulatory realities. Some agencies do not provide clear educational requirements or will not answer questions as to the match between an institution’s curriculum and published requirements. A negotiator stated that they should push states to raise their standards, but a rule aimed at institutions (the Department cannot tell states what to do) will be ineffective in changing agency behavior.
Some students are disenfranchised. Students have legitimate reasons (serving in the military, living on a border) for enrolling in a program that does not meet the requirements of the state in which the student is located. They should be given the option to make an informed choice. To focus solely on a possible abuse is to punish the innocent for the sins of the guilty.
A Major Change to a “State Authorization Reciprocity Agreement”
This is a big change. Let’s start with some basketball-analogous background…
Every once in a while, there is a team that comes from out of the blue and makes a deep run in the tournament. The reciprocity issue reminds me of just such a story.
An update to the terms of any “state authorization reciprocity agreement” was not in the original notice for the rulemaking and it was not part of the first session of negotiations. The language was introduced between the first and second sessions and was raised only in passing in the second session, as we noted in our blog post update on that session. Therefore, we were surprised to see that the Department of Education accepted the proposed language in its recommendations (Issue Paper 6: Certification Procedures) prior to the third, and final, session.
When the negotiators considered the proposal, there was a great deal of in-depth questions and comments. The conversation was extensive in session three, but this is one of the very few proposals that was discussed in-depth in only one session. Although Cheryl and Russ tried to educate select negotiators in the short time after it was introduced, it appeared that few negotiators had any prior knowledge of the history or workings of the interstate agreement.
Be that as it may, let’s examine what happened.
What Was Proposed Regarding Reciprocity Agreements?
As mentioned above, the Program Participation Agreement is a list of requirements to which an institution agrees to comply to be eligible to disburse Federal financial aid. The following paragraph was added as requirement in the proposed new section 32 (the same section as the professional licensure language mentioned above) that “the institution must ensure that each program” …
(iii) Complies with all State consumer protection laws, including both generally applicable State laws and those specific to educational institutions, except where State requirements for obtaining authorization are inapplicable pursuant to a State authorization reciprocity agreement.
In interpreting this language, it is important to distinguish between:
“generally applicable state laws” – laws that pertain to any business in a state. Fraud and misrepresentation are common examples of laws that apply to a business whether it is an institution, bank, or used car dealer. States that are members of SARA can enforce these laws on institutions participating in the agreement; and,
laws “specific to educational institutions” – laws that are specific to those providing postsecondary education in the state. States that are members of SARA agree that institutions participating in the agreement are subject to the provisions of SARA and knowingly agreed to use those provisions in place of state laws.
Reciprocity Agreements
The new proposal:
– Provides the opportunity for better state-by-state protection for students.
– Could limit consumer protections in states relying on SARA instead of local laws.
– Will create an unsettled state as we await decisions by the Department, states, institutions, and those leading SARA.
– Will raise the cost of institutions enrolling students in some other states.
Wait! Doesn’t that “Except Where…” Clause Exempt Institutions Participating in SARA?
No.
We talked about this a quite a bit and sought the counsel of legal and regulatory expertise. Although the wording is slightly confusing, the intent is clear from an explanatory note written by one of the authors of the language. That explanatory text is copied verbatim below. Note that “NC-SARA” (the organization that aligns the core elements and requirements of SARA) is referenced when it is actually SARA (the actual agreement) that contains the cited provisions. It is an important distinction, and many people confuse the two (bolding added for the proposed limits of reciprocity):
This language is proposed to address concerns that NC-SARA, the state authorization reciprocity agreement, currently requires member states to waive enforcement of education-sector-specific consumer protection laws with respect to participating schools that only offer distance education in their state. Examples of state education-sector specific consumer protection laws include: cancellation and refund provisions and student tuition recovery funds. NC-SARA distinguishes these laws from “generally-applicable” state laws, such as laws prohibiting fraud and deceptive practices.
NC-SARA’s requirement that states waive enforcement of education-sector specific consumer protection laws creates a two-tiered system that leaves distance education students with fewer protections than brick-and-mortar students. It also undermines states’ ability to protect students in their state.
The proposed language would address this problem by requiring schools that offer programs in multiple states to comply with all state consumer protection laws in each state where the school enrolls students. Schools would be exempt from compliance with state authorization requirements, such as requirements to submit an application to state authorizing agencies or pay a fee to a state authorizing agency. This would permit reciprocity agreements to fulfill their purpose of reducing the cost and burden on schools to obtain authorization to operate in multiple states, while ensuring that distance education students are afforded the same protections as brick-and-mortar students.
The exact implications depend on several steps taken by states, individually, and SARA members, collectively. We provide some opinions of what could happen.
Proponents of this approach say that students will receive far better protection against institutional misdeeds or oversights. Laws in each state were written to provide specific consumer protections based upon the previous mistreatment of students by other institutions operating in the state. Distance students would be afforded the same protections as any other student in the state.
Opponents of this approach say that some states have stricter regulations and others have minimal or no oversight of institutions serving students at a distance within their borders. Protections could decrease for these students. Improving an existing agreement that serves students everywhere but California is a preferable approach to a piecemeal, state-by-state approach.
What is the Impact on Institutions?
Again, the impact will vary depending upon further clarification of intent by the Department and actions by states, institutions, and those leading SARA. We provide our best forecast, but it is clearly opinion and not certainty.
The future benefits of an institution participating in SARA will likely be more limited than what they now enjoy. The intent is to limit those benefits to the act of applying for authorization and the associated fees. Since “consumer protection laws” is not defined, the decision as to which rules apply and which do not will fall to each state.
With the exception of the state authorization application and dues process, many of the provisions covered in SARA will likely need to be altered or removed so that institutions could remain eligible for Federal financial aid. SARA leadership and states could develop some creative pathways that we are not foreseeing.
As to the impact of states “enforcing” consumer protection laws, here is our analysis using the examples given in the intent wording provided above:
“cancellation and refund provisions” – A state could have a provision that an institution must use the tuition refund policy of that state. Let’s say that eight states have this requirement. The institution would have to have refund policies compliant with each of those states in which it enrolls students. In this example, an institution would have its own policy, but also eight additional policies if it serves students in all those states.
“student tuition recovery funds” – Some states collect fees from every institution serving students in the state. Those fees go into a fund that assists students who attend institutions that have closed.
Other requirements that could come into play might include the need to post a bond to serve students in a state, limitations on additional reporting requirements on students in the state, prohibitions on having a faculty person in a state, reviews of faculty credentials, program reviews, states could apply different standards to different sectors of institutions, and others. These requirements vary greatly by state.
As a result, the cost of doing business in some other states will rise if states apply additional requirements to institutions participating in reciprocity.
What Happened to this Proposed Change in this Week’s Rulemaking Session?
This language was part of several provisions in updates to the “Certification Procedures” that are found in the Program Participation Agreement. Consensus (agreement by all the negotiators) was not reached on the proposed language. Therefore, the Department gets to write the regulation that will be published for public comment.
The Bottom Line
The overall impact is still a bit unclear if it is put into regulation intact. There are still several steps before that is a reality and the timeline is described in the next section. Some possible outcomes:
If this language is implemented (which seems likely), the SARA leadership could decide to change their agreement to conform with this regulation.
Some states put the current SARA provisions into their legislation that enabled them to join the agreement. State legislation would be required if states want to locally enforce what they define as “consumer protection” laws.
SARA leadership could decide to work with states to negotiate a new set of benefits for SARA participating institutions.
One group has proposed the development of an alternate reciprocity agreement.
Something else completely unexpected will happen.
To be honest, we’re betting that last bullet will definitely happen.
The one sure outcome is that there will be a period of confusion for some time and that there will likely be additional costs for institutions to serve students in other states. Proponents of this new language assert that the additional student protections are worth it.
What’s Next? We Advance to the Next Round…We are through the opening weekend of the basketball tournament and that is the case with rulemaking. To recap the next steps in the process:
The Department will issue a proposed rule for comment. That could be in late spring, but is more likely to be this summer. There will likely be only 30 days in which to comment.
The public (that means you!) will comment.
The Department will respond to comments and issue a final rule:
If issued by November 1, 2022, the rules go into effect July 1, 2023.
If issued after November 1, 2022, but before November 1, 2023, the rules to into effect July 1, 2024.
Watch for an additional blog post from us this week. We plan to more briefly highlight a few other issues in negotiated rulemaking. Yes, we can hear you thinking: “oh my, what else?” That post will also talk about steps you should be taking.
Also watch on the WCETDiscuss and WCET SAN Network email lists where we will point back to this post and entertain questions from you as benefits of your WCET and/or SAN membership(s).
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