Defining ‘Regular and Substantive’ Interaction in the Online Era

The fate of billions of dollars in student aid could rest on what the Trump administration decides in coming months about an obscure distance learning regulation, one that is as old as dial-up internet.

At issue: a 1992 clause buried deep in Title IV student aid regulations that requires institutions to ensure “regular and substantive interaction” takes place between instructors and students in at least half of their online course work or for at least half of students.

Diane Auer Jones, the administration's top higher education official, said in an interview last month with Inside Higher Ed that the U.S. Department of Education is considering eliminating not just the standard credit-hour definition of academic course work -- it may also overhaul “regular and substantive” requirements. Online education proponents and a few others call it an anachronistic impediment to innovation in an era where one-third of students study at least partially online, but others aren't so sure.

“It is an ancient rule by Title IV standards, but also it is a rule that reflects its time -- and that time has passed,” said Dan Madzelan, associate vice president at the American Council on Education who previously served for years as a career official at the Education Department.

Others worry that for many for-profit colleges and others that embrace technology as a way to bring down the cost of instruction, the regulation is among the few things preventing bad actors from relegating already underserved students to course work devoid of human interaction.

“The big danger is that we end up with, essentially, online textbooks that cost $15,000,” said Robert Shireman, a senior fellow at the Century Foundation and a former Obama administration official.

The more the federal government assures institutions that they don’t need to provide human interaction, he said, the more likely it is that they’ll develop entirely automated programs that are “basically just a textbook, computerized.”

While 1992 may seem a long time ago, the real roots of what would become the “regular and substantive” regulation reach back all the way to the mid-1800s, with the birth of correspondence schools. ACE’s Madzelan has noted that these schools and their asynchronous methods of instruction arose in the era of the Pony Express, which enabled students in rural areas to take courses -- and even exams -- via mail delivery.

By 1992, in the wake of a U.S. Government Accountability Office report that found modern correspondence schools had twice the student loan default rates of other colleges and universities, Congress resolved to act. After five years of hearings into the troubled federal student loan program, lawmakers needed a way to block correspondence schools from the program. So they decreed that to be eligible for federal aid, institutions had to show that they offered students “regular and substantive interaction” with faculty members at least half of the time, or for at least half of students.

That key phrase remains in the Higher Education Act, even as sophisticated digital learning platforms have replaced college by mail. It didn't specifically apply to online education, however, until 2008. That's when Congress included the regular-and-substantive requirement as part of its definition of distance education, creating a federal aid policy distinction between correspondence and distance education programs. (Note: This paragraph has changed from a previous version to clarify when the statute went into effect.)

Federal regulations still define distance learning as different from student-driven correspondence courses, saying flatly, "A correspondence course is not distance education." Correspondence courses generally require students to initiate contact with instructors. This interaction, they say, is typically limited and irregular.

But Madzelan and others now say Congress should step in and replace the “regular and substantive interaction” standard with a more workable one that considers the realities of modern digital instruction, circa 2018. “We have models now with little or any live instruction,” he said.

The Century Foundation’s Shireman said the standard still serves an important purpose. “Leave it be,” he advised. “It is preventing diploma mills that waste enormous amounts of federal dollars. It is not preventing innovation.”

He noted that the "regular and substantive" regulation still allows institutions to comply while experimenting with up to half of programs or students.

“UC Berkeley could right now adopt, for a large proportion of its students, an approach that saves money for the university and gets rid of teachers in the classroom,” he said. “There is a huge amount of leeway currently.”

He added, “If this was an administration that I thought really understood the issues around higher education, entering this zone might be safe. But what we’re seeing is a lot of myth-based regulation.”

For many observers, the issue came to light via an investigation begun during the Obama administration, one that didn’t bear fruit until September 2017, when an audit by the Education Department’s Office of Inspector General found that most of the courses offered by the nonprofit Western Governors University failed to meet the “regular and substantive interaction” standard. The audit called for WGU, which utilizes a competency-based model, to pay back at least $713 million in federal financial aid. It also said the university, which enrolls more than 100,000 students, should be ineligible to receive more federal aid.

The audit found that 62 percent of WGU students enrolled in 2014 took at least one of 69 courses that failed to meet the requirements. In its report, OIG said none of the 69 courses “could reasonably be considered as providing regular and substantive interaction between students and instructors.”

In its response, WGU said OIG’s approach to analyzing its course work was “misguided” and narrow. OIG incorrectly applied the “regular and substantive interaction” provision, WGU said, using an “arbitrary definition and antiquated interpretation of instruction and faculty roles that may be more consistent with traditional, campus-based higher education models, but it is entirely inconsistent with today’s online- and technology-enabled models that more effectively serve contemporary students.”

WGU said OIG excluded “asynchronous” engagement, in which students and faculty may submit work and feedback online at different times. OIG also limited its review to less than 10 percent of course materials “and ignored the many interactions, augmented instruction, supplementary faculty materials, and student engagements that occur between WGU faculty and students.”

Federal investigators evaluated WGU’s design “against their own opinion of what higher education should be, rather than applicable law and regulatory guidance,” the university said. It also applied a definition of “instructor” that ignored the role of “student mentors,” WGU’s program-level faculty members. “Doing so excludes interactions that are integral components of WGU’s educational model, are included in applicable statute and regulation, and are consistent with common academic practice,” the university said.

Students at WGU are assigned a faculty member, called a student mentor, when they first enroll. The mentors have at least a master’s degree in their field and work with students regularly until they graduate. The university also employs a Ph.D.-holding subject-matter expert for each course, dubbed the course mentor. And subject-matter experts oversee each program of study at WGU.

WGU said its regional accreditor, the Northwest Commission on Colleges and Universities, had recently reaffirmed its accreditation, which it has held since 2003.

In an interview, WGU president Scott Pulsipher said its faculty members “are quite vital to a student’s progress and their learning” but warned, “We should be careful not to be oversimple in how we measure the effectiveness of that interaction.”

For instance, he said, a course in which a student sits in the back of an auditorium listening to a live lecture fulfills the 1992 interaction standard. But that student may actually get less out of the lecture than one who calls it up remotely on her laptop, perhaps even hours or days afterward, via digital video.

“The nature of interactions with faculty can actually become more personalized” without meeting the 1992 standard, he said.

Rapidly evolving technology, Pulsipher said, “is changing the nature of how students and faculty are engaging.” He said WGU welcomes the opportunity to re-examine the standard, but acknowledged that standards are essential.

“If you don’t have ‘guardrails’ around innovation, standards for quality and access and outcomes, if you don’t have them, then you can have unbridled ‘innovation’ that doesn’t serve the students’ interest nor the federal government’s interest. Innovation without outcomes is a bad idea.”

While the 2017 WGU audit made headlines, the inspector general had taken a similar stance at least one other time, seven years earlier, at a small liberal arts college in Indiana that was a pioneer in distance education: Saint Mary-of-the-Woods College found itself on the wrong end of a federal investigation in 2010 that resulted in a recommendation that the college return $42 million in federal aid.

“We were caught up in a net that probably wasn’t intended for us,” said President Dottie King.

The college has long maintained a large distance education program, dating to 1974. “Clearly in those days it was a correspondence program,” King said, but it has since changed dramatically. Nearly half of its 900 or so undergraduates now attend class remotely -- another 300 graduate students attend online after an on-campus residency.

King said the audit came as a total surprise. “To say we were blindsided by it is an understatement.”

She is still not exactly sure what triggered the audit in the first place. “Not a student complaint, not anything,” she said. The college’s accreditor had recently granted its “stamp of approval,” she said, which made the audit even more puzzling. “You’re in an odd space between two bodies that each have a lot of power over you,” King said.

She suspects the OIG complaint came after an investigator had a brief conversation with a faculty member about adult learners, King said. “She said to them, ‘We really need to meet the needs of adult students by being flexible on our timeline.’ That really seemed to be the thing that started the whole process.”

Eight years later, King is negotiating a much smaller settlement that allows the college to admit no wrongdoing. But she warned that the demographics of higher education are changing, with more adult and nontraditional students each year. “Distance education is here to stay,” she said. “We need to be involved so that we can separate the good performances from bad and really decide together how to best measure all of this, so this doesn’t happen [again] -- because this has really been a testing.”

Russ Poulin, director of policy and analysis at the Western Interstate Commission for Higher Education's Cooperative for Educational Technologies, said the basic idea behind the "regular and substantive interaction" standard is “still good,” but that it has outlived its usefulness. For one thing, he said, a student-initiated interaction with an instructor in a digital setting is vastly different than one by mail or even in person.

“In the right settings it actually works better now,” he said -- especially for adult students who may be in school while holding down a job. “When you think of something like competency-based education, where I’m on a subscription basis and I have a job, so I know I’m going to be very busy for the month of May, the idea of ‘regular’ is actually hurting the student. I may want to take the month of May off.”

When students and instructors eventually interact online, he said, it can “actually a much richer interaction” than sitting in a class and raising one’s hand. “There are a lot of things that we did in 1992 that we don’t do the same way.”

Possible Approaches

Poulin suggested that lawmakers replace the "regular and substantive" standard with a series of measures, starting with building on last-day-of-attendance requirements for distance learning. "When a student drops out without notifying the institution, there are complex return-to-Title IV refund requirements that kick into place," he said.

For face-to-face classes, demonstrating that a student attended a lecture is sufficient, he said. "For distance students, institutions must present the student's last academic activity, such as a quiz, test, paper or meaningful participation in an online discussion. To me, evidence that the student actually did something academic is a better indicator that the student and the department are not being defrauded than a notion of interactivity that they have had trouble defining."

By contrast, he said, it's easy to imagine courses in which "lots of interactivity takes place, but little learning."

For competency-based education, he said, timeline flexibility could be built in.

He suggested looking at models such as Austin Community College District's ACCelerator, which is based on the Virginia Tech's Math Emporium. "They blend lectures, small group tutorials and extensive use of learning software to serve a large number of students," Poulin said. Research has shown great improvement in math outcomes, he said.

But Spiros Protopsaltis, an associate professor of education policy at George Mason University and a former deputy assistant secretary of education in the Obama administration, said the federal government should strengthen the regulation, not weaken it.

“This requirement lies at the heart of what education is all about,” he said. “The interaction between a student and an instructor is an integral part of the educational process, and I think we need to be very, very cautious in watering down this requirement.”

He acknowledged that many students may learn well by interacting with an app or other piece of software. “That’s great,” he said, “but you don’t get full access to Pell [Grants] and loans and everything else for having a student interact with a software program.”

He especially worries about how getting rid of the standard could lower academic standards for underserved students, who could be relegated to receiving most of their education via automated instruction, not live subject-matter experts. That could result in an education that’s “not as rich and rewarding an experience” as the one that wealthy students get.

“The big fear here is that we’re going to water down what education means and what the federal government is paying for,” he said.