Online Education Rules Under the Microscope

WASHINGTON, D.C. -- As the Trump administration this week convenes a panel of experts to consider rewriting federal policies around digital learning and innovation, the eternal tension between fostering experimentation and protecting educational quality will be on prominent display.

The process, known as negotiated rule making -- or “neg reg,” for those in a rush -- began Tuesday with a wide-ranging session on the role of accreditors in policing innovation. This Thursday and Friday, three separate subcommittees will meet concurrently, including one on distance education whose meeting will be streamed online. Those groups will convene again for another two-day round in February, and once more in March.

In an unusual step, the Education Department last week released proposals for amending rules it has identified as in need of overhaul. These documents will serve as starting points for discussion and could lay the groundwork for sweeping rule changes that would go into effect within the next couple years -- though recent rule-making sessions on other issues have failed to reach consensus, prompting Education Secretary Betsy DeVos to propose her own rules.

“Inside Digital Learning” will be watching closely as major players across the spectrum of higher ed institutions, associations and related companies dig deep into policy and debate priorities. Many observers of the sector agree that current federal rules are confusing and outdated, as evidenced by the department’s recent decision not to penalize Western Governors University for appearing to fall short of the parameters for “regular and substantive interaction” between students and faculty members.

Disagreements are likely to arise, however, on how much ambiguity is permissible and what role the government should play in facilitating innovation. Below, we’ve outlined some key issues to watch.

Supporting competency-based education. Many institutions have invested in this form of teaching, which prioritizes the demonstrated accumulation of small chunks of knowledge in a flexible time frame, customized for each student’s scheduling needs and learning preferences.

But last time the federal rules were rewritten, CBE didn’t even exist, leaving institutions to draw their own interpretations of existing language around correspondence courses and “regular and substantive interaction” between instructors and students.

Violating these rules could jeopardize federal financial aid for the affected programs. The Education Department’s inspector general alleged last year that Western Governors University’s academic programs fell short of the “regular and substantive” requirement -- but that phrase isn’t defined anywhere in the regulations, and if it were, the definition might have been too narrow for what now appears mainstream in the sector. Last week, the department announced it won't act on the inspector general's recommendation.

Bob Collins, vice president of financial aid at Western Governors, said clearer definitions and guidance are needed for online education, particularly relating to regular and substantive interaction. “We hope the negotiated rule-making process will remove any ambiguity,” said Collins.

Russ Poulin, a distance ed subcommittee member who serves as senior director of policy, analysis and strategic initiatives for the WICHE Cooperative for Educational Technologies, wants to see the department replace “regular and substantive” with a new term that allows for a wider range of interactions between students and “teaching teams” comprised of multiple instructors who fill different classroom roles. But Poulin worries that the existing phrase, however vague, has been embraced by consumer advocates worried about maintaining quality standards for classroom instruction. Those groups oppose any appearance of abandoning the term, Poulin said.

“They’ve placed this one measure on a pedestal that is much higher than it should be,” Poulin said. “If it really was that great at preventing fraud, then why do we have all these programs that, using this definition, have still had lots of fraud? I think it’s been proven ineffective.”

On the other hand, permitting unchecked innovation or deferring decisions around innovation to regional accreditors could lead to other problems, according to Michael Horn, a senior partner at Entangled Solutions, a higher education consultancy.

“Accreditors can have different rules, play favorites with different institutions,” Horn said. “You can imagine a lot of unevenness and chaos playing out as well.”

Encouraging innovation without opening the door to bad actors. Both the Education Department and many members of the distance education committee want to give institutions more flexibility to experiment with new models of teaching and assessment, said David Schejbal, vice president and chief of digital learning at Marquette University and a distance education subcommittee member. But how to do that, without endangering students or taxpayer money, is an open question, he said.

Redefining “regular and substantive” interactions, the credit hour, gainful employment and even "distance education" itself provides an opportunity for positive change, said Schejbal. Competency-based education, for example, is focused on student outcomes, yet the regulation focuses largely on inputs such as the quantity of instruction provided to students, not its quality. “There’s a disconnect that makes it difficult to develop new programs,” he said.

Some institutions see the federal definition of a credit hour adopted by the Obama administration -- one hour of instruction plus two hours of additional student work each week for the duration of a semester -- as restrictive. “We have a long history of using 'time spent on a task' as the measure of learning and the criterion for financial aid,” Schejbal said. “We might not like the current structure, but there is no obvious better structure on hand. Finding a new currency would be very difficult.”

New definitions of regular and substantive interaction, the credit hour and distance education, in combination with proposed changes to accreditation, are a concern for Deb Bushway, a competency-based education consultant. If the department encourages the creation of more nimble accreditation agencies, each with the power to create its own requirements for regular and substantive interactions, there is “a deep potential for a race to the bottom,” said Bushway.

“I am totally in support of innovation, I want things to move forward, but we have to do things in a responsible way so that we maintain quality,” said Bushway. “I am worried that the combination of these changes could throw the doors wide-open for bad players to enter -- harming students and damaging the reputation of distance education.”

Both Schejbal and Bushway said they want to see pilots conducted to test the impact of proposed changes on student outcomes. While the department can create experimental sites, these often don’t go far enough, said Bushway. Demonstration projects, which would need to be authorized by Congress, would be a good way of testing changes “without throwing the doors wide-open,” she said.

Clearing up confusion over state authorization. The DeVos Education Department has already delayed the implementation of Obama-era state-authorization rules that would require online education providers to disclose whether they are approved to operate in every state where they enroll students. But the department could go even further -- eliminating the need for online programs to be authorized by states at all.

Rob Anderson, a subcommittee member and president of the State Higher Education Executive Officers association, is prioritizing state authorization as an issue ripe for new ideas.

“I’ve worked in three different state systems, and it can be confusing at times, trying to discern what is allowable and what isn’t regarding rules pertaining to financial aid,” Anderson said. “Further clarity on that front would be greatly appreciated while at the same time protecting the quality of the degree.”

In addition to substance, expect some process concerns. Nothing’s more fun than arguing about how best to argue. But that’s exactly what could happen this week. Several distance ed subcommittee members told “Inside Digital Learning” they’re surprised to see relatively little overlap in membership between the subcommittees and the main committee to which they’ll report. A representative of SHEEO lobbied the department on Tuesday for inclusion on the main committee.

There’s little doubt upcoming debates will be feisty, but will they lead anywhere productive? The consensus seems mixed so far, as some observers think the department has put too many daunting tasks on the agenda. Others have argued that the department’s goals ought to be handled with legislation in Congress rather than rule making from the executive branch.

Spiros Protopsaltis, director of George Mason University’s Center for Education Policy and Evaluation and a former staffer at the Education Department and in Congress, sees the Trump administration's proposed rules as “another step in the deregulation agenda that uses innovation as an excuse for lowering the protections of students and taxpayers,” he said.

Distance ed subcommittee members said they’re hoping for more clarity on the department’s seemingly competing goals for accreditors -- giving them more control over innovation but in some cases limiting their scope.

Despite the uncertainty, key players in the field gathering in one room means more open discussion of the sector’s challenges, according to Poulin.

“Some of it is so important but so down in the weeds. It still affects faculty and students on an everyday basis,” Poulin said. “We may be able to make some progress on some of those issues.”