This past week I had the opportunity to chat with Inside Higher Ed reporter Steve Kolovich on the post-MOOC emergence of free courses, programs, and even degrees. In particular, Steve was interested in knowing what I thought about World Education University, a new institution that intends to give away free courses leading to free degrees.
Steve asked me if I thought these kinds of programs were snake oil. I responded that I wouldn’t call it snake oil, exactly, observing that schools built on breakthrough business models tended to beg that question.
The story that resulted from the interview came out today in Inside Higher Ed. You can read what I said. It’s right there. It doesn’t sound too complimentary.
Snake Oil photo by Opacity http://www.flickr.com/photos/opacity/2771769725/ Under Creative Commons License: CC BY-NC-ND 2.0
Now, I stand by what I said to Steve. But there is a bit more to what I actually did say. And the missing context changes the meaning of what I am being attributed with saying in fairly dramatic fashion. So I want to share the whole quote, just to make sure there is no misunderstanding of where I stand on this subject. In the spirit of the old Paul Harvey radio program: “You know what the news is; in a minute, you’re going to hear … the rest of the story.”
When Steve asked me if he could quote me (this was all taking place in email, BTW), I wrote back:
“Yes you can quote me… but I want to be clear, I don’t have a problem with the fact that there are ”breakthrough business model” schools in the mix. I like the fact that people are pushing hard on bringing new ideas to the post-secondary education table. I like the idea of progressive institutions. I like that breakthrough business model schools are starting to get the traditional academy worked up because that’s what it takes to get the conversation going in serious ways. I like quality and am grateful that there are mechanisms in place to keep everyone honest. I like that new options are emerging that give new student populations access to certifications and degrees delivered in high quality scalable ways.
“I also believe that there is naïveté about the academy actually works, which makes it exceedingly hard for schools run as businesses to fit in with school that are mission driven. Just like the first round of elearning, I expect we will continue to see a lot of, shall we say, creativity, in how programs are conceptualized, and we will see the traditional institutions go wild every time their sensibilities are assaulted by all the crazy newcomers that are popping up. Some of it will be quite good. Some of it is snake oil. Some of it may be excellent but people will treat it as snake oil until the proof comes rolling in. One person’s snake oil is another person’s ticket to achieving the dream of a college education, so I don’t want to throw the whole idea out, nor do I want to point fingers.
“So with those caveats…sure. And thanks for the quote.”
I appreciate having the opportunity to share the *whole* quote. To be clear: I like breakthrough models. I like high quality innovative learning solutions that scale. I don’t care much for snake oil. Let’s take a look at the evidence of quality before we go too far down this road. Let’s also not be afraid to call the question.
Ellen Wagner
Executive Director, WCET
ewagner@wiche.edu
Ah, late October….what a great time to visit San Antonio for WCET’s 24th Annual Meeting! The weather is perfect, the festivals are in full swing, and the city is filled to the brim with great stuff to do and see. As the 7th largest city in the U.S. and a city with a deep cultural pride, San Antonio has something to offer everyone. As WCET members, we all have a passion for education, so it’s worth noting that San Antonio is home to 31 colleges and universities serving more than 100,000 students.
With our great conference program, I know you’ll be hard-pressed to find time to explore. But if you get the chance to stay through the weekend, I just want to point out that October 31 is not only Halloween, but November 2 is the annual Dia de Los Muertos celebration too.
Eating and boating along the River Walk
In full disclosure, I don’t live in San Antonio, but up the road a piece in Austin – but I’m an unabashed fan of the city. I have many friends and colleagues who are both native San Antonians and filled with opinions on the best things to do and see while in the city. Below is a collection of the good stuff. It is by no means comprehensive. My advice is to start on the Riverwalk and enjoy the food and shopping, but also get out and explore this magnificent, friendly, culturally-diverse gem of a city!
History
If you are a history buff, then you are in luck. San Antonio is one of the oldest cities in the U.S. with Spanish missionaries visiting the region in 1691. By all mean go see the Alamo – it’s less than a 10 minute walk from our hotel. Learning about the history of the mission, the battle, and the emergence of Texas independence make this a fascinating stop. Oh, did I mention that it’s haunted, too? But don’t miss the other missions in the San Antonio Missions National Historical Park: Mission San Jose, Mission Concepcion, Mission Espada and Mission San Juan.
The Alamo is a short walk from our hotel.
Food
Ah, now here’s where the city shines. The quality and variety of food is simply amazing. Yes, you should absolutely have some Tex-Mex while here. For a fun experience con mariachis, try the famous Mi Tierra restaurant near El Mercado. The Pearl Brewery has been renovated and is now home to a host of great restaurants including Il Sogno, Sanbar, and La Gloria.
For vegetarians/vegans there’s Green Vegetarian Cuisine, and The Cove is a truly unique experience. There are lots of small non-North American restaurants to be found all over, too.
Dives and honky-tonks include Sam’s Burger Joint, Tucker’s Kozy Korner, tons of places on The Strip section of N. St. Mary’s. For those who care to drive just a bit, check the world famous John T. Floore Store in Helotes for some great music, food and an authentic Texas dance hall experience.
Art
San Antonio Art Museum (SAMA), the world famous Witte Museum, the McNay Art Museum, and the Briscoe Western Art Museum are just some of the formal art spaces in San Antonio. The gallery scene is alive and well here, too. You are in luck with the timing. First Friday in South Town, is going to be held on November 2! Blue Star in particular is an epicenter for that event, but all along South Alamo Street, from Cesar Chavez to Blue Star, 1st Friday is big, and I expect the Dia De Los Muertos edition in particular will be fun! All the South Town and Blue Star art galleries will be going all out on First Friday.
Shopping
As people who know me would tell you, shopping’s not my thing. So, I’ll reference the Visitor’s Bureau’s website on this: http://www.visitsanantonio.com/visitors/shop/index.aspx I will tell you that there are some great deals to be had in San Antonio, because I’ve had some!
In closing, let me just say how happy I am that our annual meeting is being held in San Antonio this year. I think you’ll come to love this city as much as I do!
Rob Robinson
Solutions Director
Blackboard Consulting
Photo Credits:
River Walk: Stuart Dee – San Antonio Convention and Visitors Bureau
Alamo: Richard Nowitz – San Antonio Convention and Visitors Bureau
Robert Griggs is the Interim Vice President for Innovation and Extended Learning at Bemidji State University, which is located in northern Minnesota. Bob has a long history of experience with online education. We asked him to comment on trends that he has been noticing in summer enrollment patterns and how online education is changing the face of some campuses…at least in the summer.
In Minnesota, there are a few things that you can traditionally count on occurring each year. The utter collapse of one or more of our professional sports teams, never-ending road construction, and a variety of controversial political statements made by some of our more prominent elected officials.
With the growth of online summer enrollments at Bemidji State University (and other campuses), questions abound for the traditional campus.
While I’m tempted at this point to quote Jesse Ventura or Michele Bachmann, I would like to draw your attention to another statement made by a different Minnesota politician that I think is worth revisiting. In November 2008, while visiting Bemidji State University, former Minnesota Governor Tim Pawlenty challenged Minnesota State Colleges and Universities (MnSCU) to increase the percentage of credits taught online to 25% of the system’s overall credit generation by 2015.
I think it’s safe to say that the announcement, within higher education, was welcomed by some and criticized by others. At the time, approximately 9% of the credits generated by MnSCU institutions were actually delivered online. Overall, the statement was viewed as a fairly aggressive goal.
Today, nearly four years later, the system-wide percentage of online credit generation at the end of the 2011-12 academic year has increased to approximately 14%. Although the increase clearly demonstrates the steady growth of online learning in the state, the rate of growth appears to be falling short of Pawlenty’s proposed target. However, what is particularly interesting and not well publicized, is how online learning during summer session has very quietly, but dramatically, surpassed that goal to the point where it is now close to becoming the dominant method of course delivery during summer.
According to recent data reported by each of MnSCU’s 37 institutions, online learning now accounts for 41% of the system’s total summer full-year-equivalent (FYE) credit production. If you add blended/hybrid courses into this mix, the total system FYE figure jumps to approximately 49%. In the summer of 2012, twenty MnSCU institutions reported 40% or more of their summer FYE is now generated online. Ten of those institutions generated more than 50% of their summer enrollment online.
Although located on the beautiful shores of Lake Bemidji in northern Minnesota, fewer students are coming to campus in the summer.
Clearly, the flexibility and access that online learning provides have great appeal to both traditional and non-traditional students, especially in the summer. In fact, since Governor Pawlenty made his statement in 2008, online learning credit generation has increased a staggering 76% during summer session across our system. During the summer term in 2008, approximately 2,876 FYE were generated online. This summer, more than 5,068 FYE were completed online. That’s impressive growth, but with more students taking courses online and fewer students on campus, the traditional face of summer session has changed significantly.
At my institution, Bemidji State University, online learning credit generation now accounts for approximately 68% of the University’s total summer credit production. Although overall summer enrollment remains strong, having fewer students on campus in the summer has also meant a corresponding reduction in the need for food service and student housing during the summer term. Other MnSCU institutions reporting strong online learning demand in the summer have experienced similar reductions in the use of traditional campus services and activities during those months. This is particularly true of institutions, like Bemidji, that are farther away from large metropolitan areas.
While students and faculty continue to move to more online offerings in the summer, this change in enrollment patterns raises some interesting questions for institutional leaders. Do we reduce on campus student support services in the summer? If so, what impact does that have on year-round staffing? We have many facilities and a beautiful location; should we change our focus to short courses, conferences, more blended learning opportunities, or other alternative uses of these facilities?
I hope you will consider joining me this fall at the upcoming WCET Annual Meeting, October 31-November 2, in San Antonio as we discuss the reasons why online learning has grown so dramatically in summer session and some of the unintended consequences of that growth across a traditional university campus.
Robert Griggs
Interim Vice President for Innovation and Extended Learning
Bemidji State University
RGriggs@bemidjistate.edu
Photo credits: Bemidji State University
In our blog posting earlier this week, we said that the U.S. Department says that it will not enforce its distance education state authorization regulations, but that many questions remain. I’ve had several conversations over the last few days as we try to figure out exactly what the wording in the ‘Dear Colleague’ letter of July 27 actually means.
Jarret Cummings of EDUCAUSE posted his views on the USDOE’s letter. He adds unique analysis by tying in observations from the Senate report on for-profit regulations that was recently released. That report chides states for not doing enough in authorization reviews of institutions offering distance education and implies that a greater federal influence on state authorization requirements may be needed in the future.
With another take on it, below is an opinion piece from Michael Goldstein and Greg Ferenbach of Dow Lohnes, the Washington DC law firm with extensive higher education expertise. They also call into question the meaning of the wording in the ‘Dear Colleague’ letter.
Yes, it’s confusing, but when hasn’t it been? I’ll echo Mike and Greg’s concluding sentiment…”stay tuned.” Meanwhile, we’re still gathering questions to ask the Department.
Russ Poulin, WCET rpoulin@wiche.edu
On Friday, July 27, 2012, the Department of Education issued yet another Dear Colleague Letter (“DCL”) attempting, with only modest success, to explain ED’s most recent interpretation of the program integrity regulations in light of the recent Court of Appeals decision vacating that part of the State Authorization rule relating to approval of online learning.
The Department’s new, seven-page DCL, in the form of Q and A guidance, breaks little new ground, but it does include several curious statements indicating that ED policy with regard to distance education remains in flux and may be inconsistent with existing regulations and the recent Court of Appeals decision vacating the distance education rule, former Section 600.9(c).
We draw your specific attention to the answers to Question 1 (“Do I need to update my ECAR?”), and Question 7 (“How does the Court of Appeals ruling affect what institutions must do?”), which are puzzling at best.
Michael Goldstein
With regard to the first question, ED advises that “based on these regulations” institutions need only update an ECAR to add state authorization information when the institution applies for re-certification. Presumably, ED is referring to state authorizations pertaining to distance education activities, not physical sites like campuses, which, depending on the institution’s Program Participation Agreement, must be approved prior to disbursement of Title IV funds or within ten days of commencing instruction. ED goes on to state an institution “may be asked to provide that [presumably distance learning authorization] information upon request during an audit or program review.”
So, what exactly does “that information” mean and what are “these regulations”? Is ED really saying Section 600.9(c) still applies, notwithstanding the fact that it has been nullified by the Court of Appeals, and therefore evidence of all necessary state authorizations must still be supplied in the ECAR, or in the event of a program review or an audit? That does not seem consistent with the plain meaning of the District Court decision as affirmed by the Court of Appeals in the case brought by the Association of Private-Sector Colleges and Universities (APSCU) which held that under existing federal law, ED can only require that an institution be authorized by the state where it is physically located, that is, its main campus, and by any state in which it has branches or other additional physical instructional locations.
The answer to this question appears embedded in ED’s response to Question 7. Here ED reverts to the position it espoused in the APSCU litigation – implicitly if not directly rejected by the Court – that Section 600.9(c) was merely “intended to clarify existing Department policy that State authorization extends to students receiving distance education in a State in which the institution is not physically located.” ED concludes that, although 600.9(c) is not itself enforceable, institutions continue to be responsible “for complying with all State laws.”
Greg Ferenbach
That is of course a truism. So it is impossible to say definitively what this guidance means, beyond the obvious statement that the underlying state laws requiring authorization for distance learning activities are unaffected by the recent litigation. But there is certainly the inference – particularly after reading the answers to Questions 1 and 7 together – that ED continues to believe that it has the inherent authority to require institutions to demonstrate that they have all required state authorizations. What remains unanswered is what ED intends to do when it finds – in a program review, audit or recertification – that an institution has not secured any required approvals for its Internet-based programs. The implication is that it can hold an institution responsible for not having all the appropriate state authorizations. At the same time, however, ED acknowledges in the Q&A that it is not, for now, enforcing 600.9(c) – that is, the provision that the Court of Appeals specifically struck down. However, it does not say that it lacks the inherent authority to do so on some other, unspecified, basis.
The DCL does contain some unambiguous, and useful, guidance. ED confirms that consumer information, specifically identifying agencies where student complaints may be filed, should be provided for all states in which an institution enrolls students. See Questions 8-13. This information can be provided via a link on an institution’s website, and, as a precaution, we recommend providing this information for all 50 states. Note that the Court decisions do not affect ED’s authority to enforce this requirement. Note also the answer to the question whether just one student triggers the state consumer information requirement, to which ED responded with a terse: “Yes.”
The Department continues to remain silent regarding its intentions respecting whether it will re-issue the distance learning authorization rule or some new version of it. We have heard from usually reliable sources that ED personnel are suggesting that will not happen, at least not in the near future. However, regardless of ED’s future actions, it is very important to remember that failure to comply with applicable state law can result in enforcement actions at the state level, with potentially serious consequences. Likewise, failure to comply with state law can violate the expectations of an institution’s accrediting commission.
The bottom line is very straightforward: continuing to secure all required state approvals is not just prudent; it is the law.
Stay tuned.
Greg Ferenbach
Mike Goldstein
Greg Ferenbach is a Member of the Higher Education group of Dow Lohnes, pllc, where he heads the State Regulatory practice. gferenbach@dowlohnes.com
Mike Goldstein is Co-Practice Leader of the Higher Education group of Dow Lohnes, pllc. mbgoldstein@dowlohnes.com
Please note that this message is not intended to provide legal advice. Institutions that may be affected by the referenced legal requirements should consult their legal counsel for guidance.
To verify this news, Megan Raymond and I called Sophia McArdle of the U.S. Department of Education. She is the new person responsible for interpreting the state authorization regulations. Ms. McArdle confirmed that the Department will abide by the rulings of the District Court and the Court of Appeals and will not enforce the regulation.
This news surprised us as we had heard previously that the Department would find a way to enforce it. Remember that the rulings of the Courts did not question the Department’s right to issue such a regulation. The Courts vacated the regulation because it found that the Department did not follow the proper rulemaking procedures when issuing it. If it wished to do so, the Department could have reissued the regulation using the proper procedures.
What Does This Mean for Institutions?
Institutions have been given the green light regarding the federal “state authorization” regulation, but still need to follow other state and federal rules.
For now, institutions will not need to worry about this federal regulation. We will need to keep watch as it could possibly reemerge in future rulemaking or higher education reauthorization processes, but Ms. McArdle gave no hint of that being the case.
However, institutions are not completely off the hook. In both the Dear Colleague letter and on the phone, Ms. McArdle was quick to remind us that institutions:
“must comply with the provisions found in § 600.9(a).” This provision has more to do with an institution being authorized in its “home” state than with other states where it is serving students at a distance.
“continue to be responsible for complying with the State laws as they relate to distance education.” We agree. Institutions often overlook the need to follow state laws regardless of whether there is a federal requirement or not.
must continue to inform students about external complaint processes that we blogged about and provided additional follow-up last year: “The institution must also provide its students or prospective students with contact information for filing complaints with its accreditor and with its State approval or licensing entity and any other relevant State official or agency that would appropriately handle a student’s complaint.”
Questions Remain and We Need Your Help
In reading the Questions in the Dear Colleague letter, it is best to start with Question 7. This question directly addresses the legal challenges and includes the announcement that the Department “will not enforce the requirements of § 600.9(c).”
Questions 1 through 3 are more pertinent to overall institutional eligibility. Questions 4 through 7 are about “other locations and consortia.” Once you understand that the distance education provisions will not be enforced, it is helpful to see that Questions 4 and 5 pertain more to programs that are physically in another state. For the most part, Ms. McArdle confirmed that. We did have some questions remaining about specific types of internships at a distance and how the Department would address those specific cases. For Question 6 on consortia, our conversation got tied into a knot. I’m still unclear if consortia operating at a distance will still need approval from each state with a consortium member for federal financial aid purposes. Hmmm…that seemed weird or maybe we weren’t on the same page.
In our conversation we realized that there are still several items for which more clarification is still needed. Here’s where you can help. Please read the Dear Colleague letter and provide us with questions that you have. We’ll interpret and compile the questions. This will help Ms. McArdle and the Department in being able to address a more limited number of questions.
Post your questions to this blog or send them to me at rpoulin@wiche.edu. Obtaining your questions and getting additional clarifications will help us all. Please get your questions to us by the end of the day on Monday, August 6.
UPDATE as of August 17, 2012: Thank you to everyone who submitted questions. We created a compilation of those questions. We met with Dr. McArdle via phone on August 16. She said that the Department is unable to provide further comment or clarification at this time since the Courts remanded the decision back to the Department. Since they just received it a few days prior, they did not have a timeline on when the Department would be able to comment. The Department may still play a role in the future. More to come.
On August 16th, we had a call with a Department representative to obtain more clarifications
Thank you.
Russ & Megan
Russell Poulin
Deputy Director, Research & Analysis – WCET rpoulin@wiche.edu
Megan Raymond
Manager Events and Programs — WCET
mraymond@wiche.edu
Deep within an appropriations bill that was recently passed by the U.S. Senate Committee on Appropriations is a provision that could have a deep financial impact on the most cash-strapped undergraduate distance students. The bill proposes to disallow counting the “room and board” costs and “personnel expenses” (such as a computer) as part of each student’s “cost of attendance” calculations for Pell Grant purposes. These student costs would continue to be allowed for distance students seeking all other forms of financial aid.
If passed, students learning at a distance could receive smaller Pell grants than their on-campus or commuting counterparts. It is hard to understand why the cost for a student’s living expenses are not allowable if the student takes online courses, but would be allowable if that same student were to commute to campus to take the same courses in a classroom.
This is unfair. We need your help!
The Pell Grant
The Pell Grant “provides need-based grants to low-income undergraduate and certain postbaccalaureate students to promote access to postsecondary education.” The amount that a student receives depends on the student’s “financial need, costs to attend school, status as a full-time or part-time student, and plans to attend school for a full academic year or less.”
Unlike a loan, it does not have to be repaid. Pell Grants have become the cornerstone of strategies to increase access to low-income students.
“(10) for a student receiving all or part of the student’s instruction by means of telecommunications technology, no distinction shall be made with respect to the mode of instruction in determining costs…”
The above language allows distant students to count some of their “room and board” and “miscellaneous personal expenses” as part of their costs. In the Senate appropriations bill (S. 3295, beginning on page 125) that language is proposed to be changed to:
‘‘(10)(A) with respect to the determination of a student’s need for a Federal Pell Grant, in the case of a student who is receiving—
(i) all instruction (excluding limited periods in which the student is required to be physically present at the institution for noninstructional purposes, such as orientation or the administration of examinations) by means of telecommunications technology, only tuition and fees, books and supplies; or
(ii) part of the student’s instruction by means of telecommunications technology, no distinction shall be made with respect to the mode of instruction in determining costs; and
(B) with respect to the determination of a student’s need for assistance under this title other than a Federal Pell Grant, in the case of a student who is receiving all or part of the student’s instruction by means of telecommunications technology, no distinction shall be made with respect to the mode of instruction in determining costs…’’
Subparagraph (i) above would remove “room and board” and “miscellaneous personnel expenses” (such as computers) from the list of costs that distant students could claim in applying for a Pell Grant.
Why are They Proposing This Change?
I don’t know.
I thought about stopping there, but figured you would not be satisfied with that answer. Scott Groginsky (Legislative Assistant to Rep. Jared Polis, who co-chairs the Congressional Elearning Caucus), Jarret Cummings (Policy Specialist, Educause), and I discussed this issue earlier this week. Some guesses:
To save money. Given the state of the Federal budget that would make sense, but then on Monday came a notice about experiments to increase the pool of students eligible for Pell grants. If saving money is a goal, then cutting out students based on the mode of instruction is fairly arbitrary and discriminatory.
To address financial aid fraud. The theory is that if less money were available to tempt criminals, then they would be dissuaded from committing fraud. Such a move was suggested in a recent hearing on curtailing fraud, but this approach would punish more innocent people than criminals. It’s analogous to a bank stopping its online baking for all customers because a few used the internet to rob the bank. Also, much of the fraud has involved loans. To have a real impact on fraud, those aid categories would need similar restrictions on availability to distant students.
Conflating “online” education with “for-profit.” We’ve seen this before. They think they are just regulating “for-profit” institutions, but the rule would apply to all higher education sectors. And why would it be appropriate for “for-profit” institutions anyway?
At the end of the call, we came to one conclusion. We don’t know.
The Bucket Problem: A Regulatory Nightmare
The language seems to assume that students generally fall into easily identifiable buckets of: 1) receive all their instruction through telecommunications or 2) those that do not. I’m not going to go into all the particulars here, but anyone in the elearning business knows that the use of telecommunicated instruction is more of a continuum than well-defined buckets. Some faculty use technology 0% of the time in their class and some use it 100% of the time. There are examples all along the spectrum in between. Ultimately, wherever you drop the axe along that continuum is relatively arbitrary.
Further definitions will be needed to consign people to the “doesn’t count for Pell Grants” bucket. Whatever those definitions are, people will easily find work-arounds.
Why Should We Care? The G.I. Bill Had the Same Problem
“Starting next fall, Post-9/11 GI Bill eligible veterans will be able to get a monthly living stipend without having to take traditional classroom courses. The stipend for online students will be significantly different from the traditional classroom student version. Online students will get half of the national average stipend (average Basic Allowance for Housing for an E-5 with Dependents). For example a full-time student who is taking 100 percent of his or her classes online will get $673.50 a month, while a full-time student taking at least one classroom course will get the full stipend rate based on the specific location of the school.”
“As a former online student, I can say that this is better than nothing. In fact, a school official told me that a large percentage of his students planned to drop their classroom courses and attend online only due to this change.”
Even with well-deserving veterans complaining, they were able to get only half of the allowance back. Let’s learn from that lesson.
What Should You Do?
Contacting Senators and letting know your objection can’t hurt. Of special interest would be if you are in a state with a member on the Senate Appropriations Committee. Check to see if you have distance students who are receiving Pell Grants and ask them to contact their Senators. Hearing from those most affected by the change usually has the greatest impact. In your requests, ask Senators to remove the language from S.3295 that would disallow “room and board” and “miscellaneous personal expenses” in calculating Pell Grant “cost of attendance” for students studying completely online or through telecommunicated instruction.
Given that this is an election year and the inaction of Congress, this bill might not go anywhere, but let’s not be surprised and suffer from inaction.
We will keep you informed about any additional details we learn.
Thank you,
Russ
Russell Poulin Deputy Director, Research & Analysis – WCET rpoulin@wiche.edu
Earlier this year, the Association of Public Land-grant Universities (APLU) and the State Higher Education Executive Officers (SHEEO) announced the creation of the Commission on Regulation of Postsecondary Distance Education. According to the Commission’s mission statement, it will:
“develop and provide recommendations on appropriate government oversight and consumer protection for distance education. The Commission’s primary aim is to address the costs and inefficiencies faced by postsecondary institutions that must comply with multiple (often inconsistent) state laws and regulations because they provide educational opportunities to students in multiple state jurisdictions.”
Even though the phrase “state authorization” does not appear in the mission statement document or press release, it is obvious that this is a main target of the Commission.
The members of the Commissionrepresent a wide range of interests and background. I asked three of our colleagues who are members of the Commission to give us some insight as to what happened at their first meeting, which was held on June 12, 2012 in Washington, DC.
Dealing with regulatory headaches.
Paul Shiffman is the Assistant Vice President for Strategic and Government Relations for Excelsior College. He also leads the Presidents’ Forum’s efforts to create the State Authorization Reciprocity Agreement. Paul gives us highlights of what happened in the meeting:
In the overview for the meeting, Commission Chair Richard Riley emphasized that his application of the mission of the Commission would be to bring all of the higher education sectors together to consider key issues related to government oversight (federal), consumer protection, and academic quality as related to distance education. He reflected that by design, the Commission membership has membership from all sectors. Chair Riley acknowledged the work of the Presidents’ Forum in advancing consideration of multi-state reciprocity for institutional authorization, and indicated that this initiative presented a base to build upon for seeking a politically practical approach to addressing the inefficiencies in the systems for oversight of higher education. “Figure out the bread and butter issues, develop a consensus on issues/inefficiencies that should be addressed, and build a political base to get it done.”
Co-Chairs Peter McPherson (APLU) and Paul Lingenfelter (SHEEO) reflected that dealing with the inefficiencies is not an easy issue and that the work of the Presidents’ Forum though important, would have to ultimately appeal to a broad spectrum to gain a politically acceptable agreement (McPherson). Paul Lingenfelter (SHEEO) indicated that most concerns at the state and federal level are connected to the larger issue of quality assurance. He recommended that the Commission think through the core functions of higher education (institutions ad sectors) and revisit and strengthen the Triad (emphasis on the role of accreditation).
Initially, the Chair and co-chairs with commissioners that the overarching vision of the Commission would be guided by the principles that: 1. considerations should be student centered (“where students are not well served?”) 2. a good outcome would be to have states play a smaller role confined to consumer protection and less involvement in quality outcome issues (role for accreditors, institutions, and marginally, U.S. ED.).
At this initial meeting, the commissioners (listed by facilitator) listed 15 “top concerns”:
The work of the Commission should have pragmatic consequences.
Should center on and be about serving students.
Attuned to best practice while taking on bad practice.
Can’t address burdens of cost without addressing quality of outcomes (a quagmire).
Consider standards for distance education, but not divorced from all accreditation standards.
Consider the cost (staff and institutional) of inefficient structures/processes.
Broaden student access to, choice of, and affordability of higher learning.
Preserve and strengthen opportunities for innovation – focus on outcomes based framework.
Consider the impact on institutions that are not part of the current regulatory context.
An agreement for a regulatory structure (reciprocity) must be national in its scope and application.
Clear expectations (regulations) and transparency in oversight and outcomes.
Alignment of the roles and responsibilities of the states, federal government and accreditors (mapping).
Maintaining a completion agenda focus – coherence??????
Provide a level playing field for all sectors
Question the value added by our governance/regulatory behaviors.
It was reflected that preserving innovation is more important than regulatory compliance. As a relatively self-regulated industry, how do we hold ourselves accountable?
After much exploration of issues of coherence of regulation, systemic inefficiencies in the oversight of distance learning (online), and the roles of the members of the Triad, the conversation focused upon the variability of state statute and regulatory processes in institutional authorization and the barriers created to access, student choice, cost containment, and degree attainment. The Commission appears poised to solicit further input about these issues and to focus further attention to this area of concern.
Pamela Quinn, Provost, LeCroy Center for Educational Telecommunications of the Dallas County Community College District, shared the following observation:
The new Commission seems well balanced in terms of the perspectives and stakeholders represented. From an institutional perspective, the intent of this commission seems to be on track with looking at maintaining quality outcomes, innovation, and access and choice. It is clear, however, that this will be very complex and challenging in dealing with the all the states, the regional accrediting agencies, and federal regulators.
About the next steps and outcomes for the Commission, Marshall Hill, Executive Director of the Nebraska Coordinating Commission for Postsecondary Education, shared these thoughts:
There will be a second face-to-face meeting in September, a “remote” meeting (conference calls, I suppose) meeting in November, and an undetermined format final meeting in January.
I expect a set of recommendations and then an effort to get behind those recommendations and prompt change. Peter McPherson and others said several times that there’s little interest in just examining the issues and writing papers.
We’ll keep you informed on next steps for the Commission and opportunities to provide input. Meanwhile, we’ll continue pushing forward on finalizing the reciprocity agreement by this fall.
Many thanks to Paul, Pam, and Marshall for serving on the Commission and for sharing their insights.
Russ
Russ Poulin
Deputy Director, Research & Analysis
WCET – WICHE Cooperative for Educational Technologies rpoulin@wiche.edu
When proposing a regulation, the Department of Education is supposed to follow a Notice of Proposed Rulemaking process, which allows the public to comment on suggested rules. The District Court found that “the State authorization regulations, as this subsection, or any variation thereof, was not included in the notice of proposed rulemaking.”
Dow Lohnes Analysis
Here is an initial analysis on today’s ruling by Michael Goldstein from Dow Lohnes, the Washington, D.C. law firm:
The U.S. Court of Appeals for the DC Circuit has issued its decision in the lawsuit brought by the Association of Private Sector Colleges and Universities (APSCU) to overturn or revise key aspects of the “Program Integrity Regulations” that were published on October 29.2010 and went into effect, with minor exception, on July 1, 2011.
On the key issue of state regulation of cross-border distance learning, the Court upheld the lower court decision that the rule requiring institutions to demonstrate that they have secured all required state approvals wherever they enroll online students may not be enforced, but it did so on the same basis as the District Court: that the issuance of the rule was procedurally defective.
As has been often stated, the Administration could choose to reissue the rule, except this time do it right: that is, with appropriate notice and opportunity for the community to provide comments. However, it is also clear that the Department did not anticipate such a strong push-back on this rule from across the higher education spectrum: virtually every higher education association joined in support of blocking the distance learning authorization rule. While it is therefore conjectural whether there will in fact be an effort to reissue the rule after the election (depending of course on the outcome), it is also clear that the hornets’ nest of state regulation has been forcefully kicked. Whether or when the several efforts to arrive at common state standards, reciprocity or some other non-federal mechanism will bear fruit is unclear, but at least for the time being there is no risk of federal enforcement of state requirements.
Otherwise, while for the most part the Court sustained the Department of Education’s rules, there are significant portions of the decision that bear careful analysis. Notably, the court questioned the reasonableness of parts of the “Misrepresentation” rules as not affording adequate due process protection, and questioned whether the Department had adequately taken into account some key elements in eliminating at least two of the Incentive Compensation “Safe Harbors.” Stand by.
Don’t Forget — State Regulations are Still in Place
It’s important to note that this ruling affects only the federal regulation and its impact on federal financial aid. Today’s outcome has NO IMPACT on the regulations of each state. Those regulations remain in effect and the states still expect you to follow their laws.
Thank you to Michael Lambert from DETC for tipping me on the ruling and to Michael Goldstein for the analysis that he produced in a very short time.
As we learn more, we’ll keep you informed.
Russ
Russell Poulin
Deputy Director, Research & Analysis rpoulin@wiche.edu
As you may have noted, we are still addressing federal regulatory issues that resulted from the last round of Higher Education Act reauthorization. While we will continue to address what’s in place, it’s also time to look forward. We invited Ken Salomon and Chris Murray of Dow Lohnes Government Strategies to give us a preview of what’s coming. WCET has already had several conversations (both internally and with other organizations) about ways to pursue Ken and Chris’s recommendations. We will continue to keep you informed on what we are doing on these issues and how you can help.
Hello WCET community! It’s our pleasure to share our thoughts on HEA reauthorization with our many friends who connect through WCET. We thought it would be helpful to start with a summary of education policy in the current Congress before we look forward to the new Congress that will take office next January.
Interest Rates and the Budget
Ken Salomon
A Presidential election year usually means that Congress only addresses pressing legislation of national significance or measures that give incumbents political benefit. One national issue is the doubling of federal student loan interest rates on July 1. Politicians hardly want to face voters after letting the interest rates on student loans increase.
President Obama and Governor Romney have both called on Congress to prevent the increase. Bills have been introduced in the House and Senate, and it appears likely that Congress will find a solution before the election.
The core issue driving policy in Washington is the budget. Rather than the once-orderly budget and appropriations process, Congress now relies on last-minute, stopgap funding via Continuing Resolutions, omnibus appropriations, and other measures, like the forced sequestration in the Budget Control Act of 2011. Even spending once immune from cuts, such as Medicare and Social Security and Pell Grants, are quietly snipped in the waning hours before a budgetary deadline. Indeed, the current impasse about student loan rates is not about the increase itself – both sides generally agree that the increase should not be allowed to happen – but instead, it’s about how to pay for keeping the rate low.
The post-election “lame duck” Congress will be active and contentious. The Bush-era tax cuts, the payroll tax holiday, and the Medicare “doc fix” are set to expire on the same day, January 1, that the Budget Control Act triggers sequestration. Speaker Boehner and the White House have already begun to draw lines in the sand about the next federal debt ceiling increase that is still months away.
Christopher T. Murray
What does this mean for your campus? All education programs will again be on the table in the dark of night for trimming, and concerted advocacy for funding for any federal education program has become difficult or impossible in this environment.
Veterans, College Cost, and More Rulemaking
Beyond interest rates and the budget, legislation that focuses on veterans and military funding could pass before the election. Senate Democrats have re-focused their energy on veterans and military education funding, though momentum appears to have waned somewhat in the wake of President Obama’s recent Executive Order that directs the Defense and Veterans Affairs Departments to provide greater information for prospective students. However, reforms to veterans and servicemember educational aid programs that impact all institutions serving this population and that focus on oversight, transparency, and disclosure could still pass in this election year.
After two years of hearings, Senate HELP (Health, Education, Labor, and Pensions) Committee Chairman Harkin’s critical focus on the for-profit sector has quieted. He is expected to release a final report on the findings and results of his hearings early this summer that will be part of the record for legislative action next year. Significantly, Chairman Harkin and Senate Democrats have cast a wider net with the March document request issued to UMUC. Despite pressure from many corners of postsecondary education, Senate Democrats refused to take up legislation that would repeal the state authorization and credit hour regulations even though the measure passed the House by a wide bipartisan margin.
President Obama’s statements in his January State of the Union address that all institutions were “on notice” regarding the cost of college signaled to many that the Department of Education could consider extending some version of Gainful Employment to nonprofit institutions.
In the interim, the Department is planning a negotiated rulemaking on “Distance Learning,” which must be carefully monitored by everyone in the postsecondary community who has a stake online. If effectively deployed, new regulations could achieve the Department’s goal of reducing fraudulent access to Title IV through eLearning. While all but the fraudsters support that goal, the worry with new regulations is unintended consequences. Those folks who live and breathe eLearning must be actively engaged in the rulemaking process in 2012 as a primer for what may happen on the Hill in 2013.
Setting the Table for HEA Reauthorization
General Congressional inertia combined with inter-party acrimony on the Senate HELP Committee has left reform of the Elementary and Secondary Education Act at a standstill. Indeed, it will not happen in this Congress, and it also may be pushed beyond the next. Congress could very well begin the debate on HEA reauthorization shortly after convening the 113th Congress in January. The outcome of the election in November will be the major determinant of whether HEA reauthorization will occur, and if so, what it looks like.
While the 2008 reauthorization of the HEA contained largely incremental tweaks to the law, the next reauthorization could contain substantial changes. The November election will determine party control of the House, the Senate, and the White House which in turn will determine the agenda and tone surrounding reauthorization. At present, the races for the White House and the Senate are too close to call, but the House is more likely than not to remain in GOP hands. Reauthorization in a Democratically-controlled Senate would concentrate reforms on for-profits; reauthorization in a GOP-controlled Senate would be a larger examination of all of postsecondary education, particularly if Governor Romney wins the Presidential race.
We expect that HEA reauthorization will begin with the House and Senate authorizing committees and would focus on three specific issues.
First, the Committees will most certainly take a deep look back into the Program Integrity rulemaking related to federal student aid and its impact on institutional operations, particularly if the GOP controls either the House or the Senate and thus chairman’s gavel on the respective education authorizing Committee. A subpart of this relitigation could be the Department’s increasing micromanagement of issues that have traditionally been left to the discretion and judgment of institutions.
Second, the role the “Triad” – the U.S. Department of Education, accreditors, and state licensing agencies – in postsecondary education will be explored. The functions of each of the Triad have largely bled together in recent years. We anticipate the Committees to take a closer look at the Triad, especially with regard to accreditation, to determine whether the foundations of oversight need to be reformed.
Finally, the main focus of Committees could be an examination of ways to address the cost – both to taxpayers and to families – of attaining a postsecondary degree. Congressional and public frustration with college cost is getting ever louder (reflected in a segment of 60 Minutes on May 20), as is the frustration of many in Congress with the level of federal education spending. One issue that has united all subsectors of postsecondary education is the resounding complaint that institutions do not have the power to limit student borrowing. Giving institutions such discretion is certainly worthwhile but could be a slippery slope for adult and low-income learners who often rely on federal aid to supplement the loss of other income while attending school.
eLearning in HEA Reauthorization
Beyond these larger issues, we expect eLearning to play a sizable role in reauthorization. We hope that a core part of the conversation will be the impact eLearning can have on access and attainment.
Many of the leading disruptive innovators in the education sector hail from the eLearning community (witness the new President of MIT). Those institutions that are focused on competency-based education, including subparts of larger institutions, could be given wider latitude to explore their disruption. However, if reauthorization were to specifically free institutions all from seat time and focus on outcomes, the impact on eLearning could be dramatic.
We strongly encourage the eLearning community to gear up for reauthorization immediately and be prepared work with Congress this year. Concrete legislative proposals for inclusion in reauthorization must be identified and drafted, perhaps in part working through the new Congressional eLearning Caucus founded by Representatives Noem (R-SD) and Polis (D-CO). To that end, we strongly urge everyone reading this post to ask your members of the House of Representatives to join the Caucus because the larger the Caucus, the greater its impact on reauthorization.
The groundwork for reauthorization will be laid with the current Congress for possible reauthorization in 2013. Time is of the essence in getting your institution and associations involved. We look forward to working with our partners in the WCET community on concerted advocacy for smart ways to advance the best of eLearning in the next iteration of the HEA.
2012-2013 Outlook
Short Term (1-6 Months): Student loan interest rate fix; potential veterans legislation without 90/10 Rule revision.
Mid-Term (6 Months-12 Months): Additional federal education program spending cuts.
Long-Term (12+ Months): HEA reauthorization with moderate-to-sweeping changes.
Kenneth Salomon is the Chairman of and Christopher Murray is the Vice President for Education Policy of Dow Lohnes Government Strategies LLC.
When speaking about state authorization to institutional audiences, we are often asked to provide guidance to institutional leaders and staff on how they might go about starting the process of becoming authorized outside of the institution’s home state. After thinking carefully about the issues surrounding the process of state authorization, speaking with numerous state regulators, listening to institutional leaders and staff who are experienced doing this work, we have identified the following ten-step process to help frame the work ahead.
Step 1: Select the right person to lead
When selecting a person at your institution to lead the state authorization work, choose someone who is organized, knows how to keep a good paper/e-trail (more on that in Step 10), really understands your institution, and is willing to do the work to understand and comply with the regulation requirements of other states. This will greatly increase the likelihood that your institution’s state authorization processes will move forward in an efficient and timely manner.
Step 2: Review your enrollment history – do you know where your students are?
Sharmila Basu Conger, Russ Poulin, and Marianne Boeke
Review your enrollment history so that you are able to develop a clear understanding of your student body and where they tend to be located. You may find that your population of distance education students is limited to just a handful of states; this gives you an early sense of which agencies to target in your initial communications.
Step 3: Develop relationships across your institution
Authorization is not limited to distance education. It encompasses everything that an institution is doing (i.e., advertising, practica, or any face-to-face activities) in another state. Therefore, it is important to work with the faculty and deans at your institution to understand which programs are serving students or have a physical presence in outside states. In addition to providing you further clarity about where – and for what – your institution will need to be authorized, this allows you to develop trust and channels of communication with your colleagues across your institution. You will reap the rewards of this early work many times over as you repeatedly return to these folks to gather and verify information related to the authorization process.
Step 4: Engage and inform institutional leaders
Ensure that the leaders of your institution – presidents, provosts, deans, and legal counsel – understand the process of state authorization for your institution. Investing the time to nurture these relationships in the context of authorization will help institutional leaders understand why they (and their faculty) are being asked to provide certain information to you. Leadership buy-in can also translate to an institutional culture of accountability, which facilitates the information-gathering work you will need to do to complete the authorization processes in the states. Ultimately, decisions about how to proceed (where to apply; denying students access) will involve institution-wide strategic choices that must be made by or must have the full support of these leaders.
Step 5: Research state agency regulations
After developing a good sense of which states house students, faculty, buildings, and other triggers for authorization from your institution, you will want to review the regulations, requirements, and web sites for all of the authorization agencies in these states. Agencies vary in their purview of authorization; it helps if you begin your research armed with a good sense of the type of institution you are representing, the number of students served in each state in which you are seeking authorization, the types of programs offered in that state, and any other activities your institution is conducting in that state. A good place to start your research is the SHEEO State Authorization website, which includes a directory of state regulators and contact information for each. Some states (e.g., Ohio, North Dakota, and Oregon) have developed state authorization networks for people to share information; your home state may have an existing network or one in the works that may help with the issues surrounding state authorization.
Step 6: Develop a relationship with regulators
It is important to remember that state regulators are seeking to develop relationships with institutions that are offering instruction, or have a physical presence, in their state. This allows them to be better stewards of consumer protection for their state.
The best first way to communicate with state regulators is often through email. The first email should be relatively short, without sounding like a form letter; your question(s) should be clear and concise. Regulators are looking to get a sense of what activities you plan to undertake in their state: what types of programs would be offered, how many students are being served, and any advertising, proctoring, or face-to-face experiences that will be required of students. You can facilitate the authorization process by including this information in your early communications.
Please note that state regulators have heavy workloads and may be the only staff person in a particular agency. Therefore, be patient. The state regulator will get back to you in time; it behooves you to be kind and establish a friendly relationship. Remember that you and your staff will be working with this agency, and possibly this very person, for years to come.
Step 7: Determine where you will apply
After determining where your students are located, engaging your institutional leaders, faculty, and staff in this process, and making initial inquiries to state regulators, it is time to start thinking about putting together your applications for authorization. During your research process, try to determine which state agencies may require only an exemption for your institution, and where there might be a lengthy process or steep fees. By weighing the number of students you are serving in that state against the regulatory burden required, you can make some strategic decisions about where to apply.
An important note to remember is that for many states you will need to do little or nothing regarding authorization. Be sure to identify those states for which you are automatically approved or for which you can easily apply for an exemption. Do keep a paper trail of these exemptions, waivers, and automatic approvals for your institution’s records (in some cases, this is a simple as printing out the web page that indicates your type of institution need not apply).
If you do decide that you will NOT apply for authorization in certain states, make sure that you indicate this clearly on your institutional website in appropriate places, so that you are in compliance with federal and state consumer protection laws.
Step 8: Apply!
Use the information provided on the state agency websites to determine the appropriate approval processes and information required from your institution to formally apply for state authorization. At a minimum, you should be able to provide the following information about your institution’s operations in that state:
The type of Institution you represent – for-profit, not-for profit, religious, etc.
The number of students your institution is serving
The types of programs offered by your institution – degree, non-degree, or both?
Your institution’s status on common physical presence triggers:
3rd Party Contracts – Proctored Exams, Student Services
Advertising – National Media or Local Media (targeted)
Complete contactinformation, so they can contact YOU
Step 9: Determine post-approval steps and timelines
Determine post-approval steps and timelines and start thinking about the renewal process. Like it or not, state authorization is not a one-shot deal. It is a continual process that will need to be revisited regularly. Every state agency has different renewal timelines, application processes, and fees. In addition, many states are in the process of revamping their state authorization regulations. You must be diligent about keeping up on the changes to state agency requirements to ensure that your institution remains in compliance.
Step 10: Document what you do
This is very important for two reasons. First, the US (Federal) Department of Education (USDOE) has indicated that an institution should be making a good faith effort toward seeking compliance prior to the July 1, 2014 deadline. However, the onus is on the institution to prove good faith. Good faith does not mean sending blanket form letters to every agency and then declaring your work done; instead, it should mean that you are moving toward state authorization and making progress. Meanwhile, the states expect you to already have received approval before serving the first student in their state.
The second reason to document what you do is for your own institution’s peace of mind. In many institutions, this work is assigned to only one or two staff members. If you ensure a strong trail of documentation, then as people move in and out of positions within an institution, the state authorization work that was done will not be lost. It is YOUR responsibility to keep track of what you have done, NOT the state regulator’s responsibility – so save yourself a massive headache and keep a paper trail, keep an electronic trail, keep records of what you’ve sent and who you’ve talked to, so you can go back and reference it in the future.
In Conclusion
As you begin on the state authorization journey keep in mind that staying organized, communicating with all affected parties, and networking with others in like positions will help to keep you sane. The best way to begin a large project is by taking the first step. We hope that we have given you an idea of where to take that first step…and a few more after that.
Author’s Note: The above list was compiled by pulling together information from the SHEEO survey of state authorization and from presentations and blog posts by Sharyl Thompson, Vice President of Regulatory Affairs and Compliance, American College of Education and Russell Poulin, Deputy Director, WCET – WICHE Cooperative for Educational Technologies.
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