On July 1, 2021, the Department of Education released the final set of proposed regulations stemming from the 2019 Negotiated Rulemaking process (the Distance Education and Innovation Regulations). As part of these regulations, the definition of “distance education” in Chapter 34, §600.2 was updated, including specifically defining the critical terms: instructor, regular, and substantive.  

This was an important update, as “regular and substantive interaction” is what distinguishes “distance education” from correspondence, which has important implications for federal financial aid eligibility. However, until now, those terms were not defined by regulation, and guidance on the meaning of those terms was incomplete. Failure to comply with regular and substantive interaction requirements jeopardizes an institution’s access to federal financial aid if more than 50 percent of their courses are classified as correspondence courses, or more than 50 percent of their students are enrolled in correspondence courses.

Regular and substantive interaction” is used in the “distance education” definition as a consumer protection mechanism for students and to delineate federal financial aid eligibility for courses and competencies.

In talking with personnel from institutions about these updated regulations, there were commonly raised questions and concerns, and it was clear that further guidance from the Department would help institutional personnel understand what actions to take to best serve students and assure compliance. Earlier this month, WCET and the State Authorization Network submitted questions to the Department of Education based on discussions with our members and questions raised during presentations. Institutional compliance personnel across are seeking further guidance to assure compliance with this important distinction. We look forward to providing an update and analysis pending a response from the Department.

While we do not have all the answers at this time, we thought it was important to provide an overview of our best interpretations of these requirements and issues that have been brought to our attention as it relates to the federal definition of distance education. Please feel free to contact us with additional questions.

Definition of “Distance Education” in the Guidance for Program Approval by Accrediting Agencies

As we covered in a June blog post, the Department issued new Guidance on Accreditation and Eligibility Requirements for Distance Education about when an institution needed to seek institutional accreditation approval for offering distance education programs. In particular, the Guidance states that a “program offered in whole or in part through telecommunications is eligible for Title IV, HEA program purposes if the program is offered by an institution that is accredited by an agency that has accreditation of distance education within the scope of its recognition.”

Note that the Guidance referenced distance education at the program level and set a lower bar for review than the 50% level that had been used by accrediting agencies for many years. In light of this Guidance and the transition to remote and digital learning during the pandemic, we received many questions about under what circumstances the variations of distance education would be considered “offered in whole or in part through telecommunications”. We also wondered if that program level threshold also be applied to courses, since that is the unit of measure for “regular and substantive interaction” reviews. Due to these questions, in our letter we asked that the Department clarify whether this guidance means that courses using any distance education variation (such as but not limited to blended learning, hybrid learning, hyflex learning, flipped classroom, adaptive learning, etc.) are now considered distance education and thus necessitates approval.

Definition of “Distance Education” as Applied to Courses in §600.2

The final definition of distance education in 34 CFR 600.2 in its entirety is as follows (emphasis added):

1. Education that uses one or more of the technologies listed in paragraphs (1)(i) through (1)(iv) of this definition to deliver instruction to students who are separated from the instructor or instructors, and to support regular and substantive interaction between the students and the instructor or instructors, either synchronously or asynchronously.
2. The technologies that may be used to offer distance education include —
   1. The internet;
   2. One-way and two-way transmissions through open broadcast, closed circuit, cable, microwave, broadband lines, fiber optics, satellite, or wireless communications devices;
   3. Audio conferencing; or
   4. Other media used in a course in conjunction with any of the technologies listed in paragraphs (1)(i) through (1)(iii) of this definition.
3. For purposes of this definition, an instructor is an individual responsible for delivering course content and who meets the qualifications for instruction established by the institution’s accrediting agency.
4. For purposes of this definition, substantive interaction is engaging students in teaching, learning, and assessment, consistent with the content under discussion, and also includes at least two of the following—
   1. Providing direct instruction;
   2. Assessing or providing feedback on a student’s coursework;
   3. Providing information or responding to questions about the content of a course or competency;  
   4. Facilitating a group discussion regarding the content of a course or competency; or,
   5. Other instructional activities approved by the institution’s or program’s accrediting agency.
5. An institution ensures regular interaction between a student and an instructor or instructors by, prior to the student’s completion of a course or competency—
   1. Providing the opportunity for substantive interactions with the student on a predictable and scheduled basis commensurate with the length of time and the amount of content in the course or competency; and
   2. Monitoring the student’s academic engagement and success and ensuring that an instructor is responsible for promptly and proactively engaging in substantive interaction with the student when needed, on the basis of such monitoring, or upon request by the student.

Note that there were minor revisions to language found in the first part of the definition relating to the technologies that can be used to offer distance education. The Department updated the types of technologies that are being used or may be used and removed references to outdated technologies.

However, when it comes to oversight of the requirements for regular and substantive interaction and distinguishing distance education from correspondence education, the Department outlined the five factors on which it will focus in the preamble to the final regulations:

1. The institution’s online instruction is delivered through an appropriate form of media;
2. The instructors with whom students regularly and substantively interact meet the requirements of the institution’s accrediting agency for instruction in the subject matter;
3. Instructors engage in at least two forms of substantive interaction meeting the regulatory requirements for the course or competency;
4. The institution has established scheduled and predictable opportunities for substantive interaction between students and instructors and create expectations for instructors to monitor each student’s engagement and substantively engage with students on the basis of that monitoring; and
5. Instructors are responsive to students’ requests for instructional support.

The following sections break down the definition of distance education in more detail. In those sections, we will do our best to answer some of the most common questions WCET has received relating to that piece of the definition, including how the Department may go about making determinations about the above five factors.

As a helpful illustration, we’ll complete the following summary table throughout the rest of the blog to illustrate how our understanding of the requirements has changed with the new definitions and information from the Department. The “Previous Interpretation” column is derived from an analysis of guidance and findings against institutions that was conducted in 2016 by Russ Poulin, WCET, and Van Davis, then of Blackboard and now of WCET.

	PREVIOUS INTERPRETATION	CURRENT (AFTER JULY 1, 2021)
INTERACTION	Only initiated by the instructor
INSTRUCTOR	Meets accreditation standards
SUBSTANTIVE	Of an academic nature
REGULAR	Regular and somewhat substantive

Definition of Instructor

In part three of the distance education definition, instructor was defined as follows:

For purposes of this definition, an instructor is an individual responsible for delivering course content and who meets the qualifications for instruction established by the institution’s accrediting agency.

Over the years, institutions pieced together requirements from departmental guidance and Office of Inspector General (OIG) audit reports. Those reports generally indicated that to qualify as an instructor the individual had to meet the institution’s accreditor standards; however, that guidance was not always consistently applied. The definition above explicitly relies on accreditor approval for purposes of determining whether an individual would qualify as an instructor.

Below are the most common questions WCET received on the definition of instructor. We asked that Department issue guidance to confirm this interpretation of the definition of instructor and additional guidance as necessary into the types of qualifications needed for Teaching Assistants, Graduate Assistants, and other instructional team members to meet the definition of instructor.

Does the definition of instructor encompass instructional models involving team instruction or unbundled instruction?

In the preamble, the Department asserted that the current regulatory language accommodates the use of instructional teams and that no change in language was necessary in order to further encourage their use.

Who counts as an instructor? Do Teaching Assistants or Graduate Assistants count, or does it depend on what they do?

As mentioned above, the definition above explicitly relies on accreditor approval for purposes of determining whether an individual would qualify as an instructor. Therefore, it is up to your institutional accreditor (and potentially programmatic accreditor pending applicability). Our understanding is that most accreditors accept teaching assistants who are doing instruction, grading tests, or facilitating breakout session, however the institution should check with its accreditor(s).

In the preamble, the Department stated that it will evaluate whether an instructor meets an accrediting agency’s requirements by:

• reviewing the agency’s written standards; and
• any communication between the agency and the institution regarding the agency’s requirements or whether the instructors in question met such requirements

In the event the Department cannot determine whether an instructor meets the accreditor’s requirements after going through the steps above, the Department may contact the accreditor directly to obtain a determination.

	PREVIOUS INTERPRETATION	CURRENT (AFTER JULY 1, 2021)
INTERACTION	Only initiated by the instructor
INSTRUCTOR	Meets accreditation standards	Explicit reliance on accreditor approval
SUBSTANTIVE	Of an academic nature
REGULAR	Regular and somewhat substantive

 Definition of Substantive

In part four of the distance education definition, substantive interaction was defined as follows:

For purposes of this definition, substantive interaction is engaging students in teaching, learning, and assessment, consistent with the content under discussion, and also includes at least two of the following—

1. Providing direct instruction;
2. Assessing or providing feedback on a student’s coursework;
3. Providing information or responding to questions about the content of a course or competency;  
4. Facilitating a group discussion regarding the content of a course or competency; or,
5. Other instructional activities approved by the institution’s or program’s accrediting agency.

In previous blog posts addressing the definition of regular and substantive interaction, we provided an overview of how the Department may interpret the meaning of the terms based on OIG audit reports. In those audit reports, the OIG defined substantive as “relevant to the subject matter” and provided further examples of what is not substantive interaction.

As seen in the above definition, the Department has now defined substantive interaction with specific examples and requires institutions to meet at least two of the listed requirements.

What type of evidence is needed to document compliance with the definition of substantive interaction?

In the preamble, the Department stated that an institution is expected to maintain policies or procedures that create expectations for faculty to substantively interact with students. The Department also stated that it does not expect institutions to document the exact amount of time spent on any substantive interaction. In our letter, we asked the Department to confirm these expectations. In the meantime, we recommend that institutions document any policies, procedures, or actions taken to establish expectations around faculty substantively interacting with students. For example, having course syllabi clearly delineate instructional activities.

What is “direct instruction”?

The Department does not define “direct instruction” in the regulation. In the Department’s April 2021 webcast on the regulations, in response to a question from WCET staff the Department indicated that direct instruction is intended to be a situation in a synchronous environment where both the instructor and student are present at the same time and are both engaged. However, in the same webinar, the Department stated that would be a “version” of direct instruction, implying there may be other acceptable practices that would constitute direct instruction.

We believe that “direct instruction” would likely include asynchronous activities, such as participating in discussions, providing feedback, and office hour interactions with students focused on the subject of the class.

Even if the Department defines “direct instruction” as synchronous-only, most distance courses should still meet the substantive requirement by meeting two of the other four criteria.

Would video lecture be considered direct instruction (synchronous or asynchronous)?

A real-time, synchronous video lecture would count as direct instruction. Based on the Department’s April 2021 webcast, a recorded lecture would likely not count as direct instruction. However, we want to emphasize that direct instruction is only one option in a list of five options for substantive interaction, two of which must be met for direct instruction to be fulfilled. Therefore, an instructor could still use recorded video lectures in a course if combined with other direct instruction interaction activities.

We will note that, in our letter, we asked the Department to clarify what constitutes “direct” instruction, including if it may be synchronous or asynchronous, as the information we have sourced conflicts.

Do assessments count as substantive interaction? What about “auto-graded” assessments or “computer-generated” feedback?

Assessments would meet the second bullet point in the list of activities that qualify as substantive interaction, “assessing or providing feedback on a student’s coursework.” However, we emphasize that institutions remember that they must provide at least two of the listed opportunities for interaction, so assessments alone would not meet the requirements.

The Department indicated in the preamble that interactions with artificial intelligence, adaptive learning systems, or other forms of interactive computer-assisted instructional tools will not meet the statutory requirements for regular and substantive interaction. The Department noted that such interactions may qualify as forms of “academic engagement” but in the context of regular and substantive interaction it would not satisfy the requirements.

	PREVIOUS INTERPRETATION	CURRENT (AFTER JULY 1, 2021)
INTERACTION	Only initiated by the instructor
INSTRUCTOR	Meets accreditation standards	Explicit reliance on accreditor approval
SUBSTANTIVE	Of an academic nature	Has a list of activities (instruction, assessment, tutoring, answering questions)
REGULAR	Regular and somewhat substantive

Definition of Regular

In part five of the distance education definition, regular interaction was defined as follows:

An institution ensures regular interaction between a student and an instructor or instructors by, prior to the student’s completion of a course or competency—

1. Providing the opportunity for substantive interactions with the student on a predictable and scheduled basis commensurate with the length of time and the amount of content in the course or competency; and
2. Monitoring the student’s academic engagement and success and ensuring that an instructor is responsible for promptly and proactively engaging in substantive interaction with the student when needed, on the basis of such monitoring, or upon request by the student.

Our previous understanding, based on Dear Colleague Letters and OIG Audits, was that instructors were expected to interact with students on a fairly set schedule with those communications not too far apart.

In addition, in a December 2014 Dear Colleague Letter, the department stated that:

“We do not consider interaction that is wholly optional or initiated primarily by the student to be regular and substantive interaction between students and instructors. Interaction that occurs only upon the request of the student (either electronically or otherwise) would not be considered regular and substantive interaction.”

With the new definition in effect, the Department requires institutions to meet two criteria to demonstrate regular interaction. It was originally intended by the negotiators that institutions must meet one requirement or the other, and not both, but the final committee settled on requiring both.

The new language also allows for interactions “upon request of the student” for the first time. Previously, only interactions initiated by the instructor were counted. However, as discussed below, these student-initiated interactions alone will not suffice without additional instructor-scheduled opportunities for interaction.

Q: What is needed to show that interactions be “commensurate with the length of time and the amount of content in the course or competency”?

In the preamble, the Department stated that, due to the variety of distance education instructional modalities, it did not believe it to be practical to offer a specific timeframe, sequence, or frequency by which interactions need to occur within the course or competency for purposes of regular interaction. The Department noted that the Distance Learning and Innovation subcommittee that worked on these regulations believed that a specific timeframe would be overly prescriptive, excessively complex, and would be tough to adapt to courses of different lengths.

We recommend that institutions develop policies or procedures that create expectations for faculty to substantively interact with students on a predictable and scheduled basis and to monitor each student’s engagement and success and follow up with the student as needed. An example of “predictable” would be to say that a new lesson is released every Monday, Friday, or some equally predictable timeframe. An example of “scheduled” is the course syllabi in outlining when activities will happen in the course.

It is not strictly required that interactions take place on a weekly basis. There could be course or competency considerations that justify instructor-initiated interactions more or less frequently. For example, a course may be strengthened by having a two-week period in which students are working on a project and there is no new instruction from the instructor. However, the instructor should be available for student-initiated questions.

Q: What is meant by predictable and scheduled and could scheduled “office hours” be used to fulfill the regular interaction requirements?

During the Department’s April 2021 webcast on the regulations, the Department affirmed that, for competency-based education and adaptive learning, scheduled “office hours” may be used to fulfill the regular interaction requirement. In addition, the Department’s preamble indicated that the requirement could be met if instructors made themselves available at a specific time and modality, regardless of whether students chose to attend.

Furthermore, the Department noted that the negotiators and the department agreed to frame this requirement as an “opportunity” for interaction rather than a required interaction. The Department asserted that, in so doing, it allows institutions to demonstrate compliance at the program design level without requiring institutions to document every interaction between students and instructors. With the increase of competency-based education and other modalities that are by design on an irregular schedule, this inclusion of office hours was a necessary compromise.

We have heard that some in the financial aid community disagree that this is allowable under the definition of academic engagement. This is a deviation from past practice, and we thought it was important enough to raise with the Department again.

Q: What is meant by “prompt and proactively” and how does an institution demonstrate compliance with this requirement?

As mentioned above, the Department indicated that institutions could demonstrate compliance with the requirements at the program design level without documenting “each and every” interaction. We believe this implies that specific information in a course syllabus or other similar document shared with students that illustrates how quickly students can expect responses from their instructors may suffice to meet this requirement. However, as part of our letter to the Department, we asked them to confirm whether policies and faculty development were sufficient, as well as detail any additional criteria or metrics that institutions should consider.

For monitoring student engagement…Rather than purchasing new software or sophisticated analytics tools, we want to emphasize that institutions may be able to leverage data collected by their current learning management system as evidence of both interactions in online courses and of monitoring of student’s academic engagement and success.

Q: How does an institution monitor a student’s engagement and success in accordance with this definition?

In the preamble, the Department stated that its expectation was that instructors take a proactive approach to determining whether students need assistance. The Department gave some examples of how this may be done, such as:

• Using sophisticated systems of technology to monitor student activity
• Traditional person-to-person evaluation
• Using tests or quizzes
• Evaluating each student’s performance in regular class sessions or in regular assignments

Rather than purchasing new software or sophisticated analytics tools, we want to emphasize that institutions may be able to leverage data collected by their current learning management system as evidence of both interactions in online courses and of monitoring of student’s academic engagement and success.

	PREVIOUS INTERPRETATION	CURRENT (AFTER JULY 1, 2021)
INTERACTION	Only initiated by the instructor	Mostly instructor initiated, some leeway
INSTRUCTOR	Meets accreditation standards	Explicit reliance on accreditor approval
SUBSTANTIVE	Of an academic nature	Has a list of activities (instruction, assessment, tutoring, answering questions)
REGULAR	Regular and somewhat substantive	Predictable and scheduled and tracking and intervention

Final thoughts

We believe that the definitions provided in the new regulations are a much-needed improvement from previous interpretations and guidance gleaned throughout the years prior. Even though questions remain, we are hopeful that the Department will issue sufficient guidance to address institutional concerns.

In the meantime, institutions would do well to evaluate, in line with the above-discussed guidance, the policies and procedures in place for their instructors to implement these requirements. Institutions should also consider whether there are the means and internal controls necessary to monitor and evaluate online programs over time to ensure compliance with the institution’s policies and regulatory requirements.

Finally, the regulations were based upon the backbone premise of more trust of the relationship between the institutional accrediting agency and the institution. In fact, some practices (e.g., who is an instructor, innovative “substantive” activities) requires input from the accrediting agency. Some of the answers will be found in conversations with your accreditor.

We will keep you updated on further announcements from the Department and will perform additional reviews and analysis as necessary.

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