Answers From Experts on Regulatory Flexibility

The U.S. Department of Education has issued guidelines that seek to give colleges and universities more regulatory flexibility as they close campuses and move classes online amid coronavirus concerns.

A March 5 guidance document included temporary waivers from the feds and accreditors on new or expanded distance education programs.

“The department is providing broad approval to institutions to use online technologies to accommodate students on a temporary basis, without going through the regular approval process of the department in the event that an institution is otherwise required to seek departmental approval for the use or expansion of distance learning programs,” the document said. “We are also permitting accreditors to waive their distance education review requirements for institutions working to accommodate students whose enrollment is otherwise interrupted as a result of COVID-19.”

The department also on March 12 issued guidelines on privacy requirements for students.

Typically, the Family Educational Rights and Privacy Act (FERPA) does not allow colleges to disclose information about students without their consent, including details about their health.

But in the case of a health or safety emergency, the department said FERPA allows colleges to share personally identifiable information about students without their consent. The coronavirus pandemic qualifies as an emergency.

“Educational agencies and institutions, such as school districts, schools, colleges and universities, can play an important role in slowing the spread of COVID-19 in U.S. communities,” the March 12 guidelines said. “Through information sharing and coordination with public health departments, educational agencies and institutions can help protect their schools and communities.”

Amelia Vance, director of youth and education privacy at the Future of Privacy Forum, said much of the new guidance was outlined in what the department released during the 2009 spread of the H1N1 virus.

For example, if a student were to test positive for coronavirus or had symptoms, the college could release a statement saying a student tested positive, without identifying the student.

Colleges also could send emails to students who shared specific classes with the sick student. While the guidance released today says those situations are typically rare, Vance said that likely will not be the case with coronavirus.

For those worried about violating regulations, Vance pointed to a 2009 FERPA regulation that said the department won’t second-guess a college’s determination in an emergency unless most people would consider it unreasonable.

The second exception allows colleges to identify students to public health departments. If the college declares an emergency, it can provide that information without students’ consent. If a college said it’s not an emergency, the department could hypothetically issue a subpoena to get the information, Vance said.

College officials should keep in mind that they are required to record instances when they share students’ information without consent, Vance said. She recommends they keep track in real time so they don’t have to retrace their steps after the situation calms down.

Q&A on Distance Education Guidance

To learn more about what the March 5 release from the department means for colleges, Inside Higher Ed exchanged emails with Phil Hill, an analyst with Mindwires Consulting who blogs at PhilOnEdTech.com, and Daniel Madzelan, assistant vice president for government relations at the American Council on Education.

Lightly edited versions of their responses follow below.

Q: How long will the department’s waivers on the approval of distance education programs be in effect?

Madzelan: The Education Department grants Title IV eligibility to an institution’s educational programs. One aspect of that eligibility is mode of delivery. A program that is approved only for on-site instruction is not eligible for online delivery unless/until ED approves the institution’s application to deliver that program online.

The department is saying that an on-site-only program can switch to online eligibility without going through the ordinary ED approval process if that on-site program was otherwise eligible in the current payment period. Said a bit differently, if the current semester (i.e., payment period) includes March 5, then the institution can now offer the program online for the remainder of the semester without getting prior ED approval.

After this semester (i.e., payment period), institutions would need to secure eligibility for online program delivery via the normal process (unless ED provides guidance to the contrary at a later date).

Q: In courses that have been moved to online delivery, will the department or accreditors enforce the requirement for instructors in distance education programs to regularly initiate substantive communication with students?

Madzelan: Presumably ED’s usual program review protocols and audit procedures will remain in place.

Q: From a regulatory perspective, what specific quality concerns with online programs do colleges need to monitor most closely?

Hill: One quality concern that is very important to monitor is equitable access to courses and the tools required to complete them -- essentially trying to ensure we don’t increase the opportunity gaps. Yes, we are in an emergency mode that supersedes some other concerns, but institutions should not ignore the effect that unplanned remote delivery of face-to-face courses can have on a broad set of students.

On the accessibility front, institutions should provide guidance to instructors on how to include reasonable transcription of virtual discussions (e.g., through Zoom) and how to take advantage of existing tools to do so. For example, Flipgrid automatically adds captions to videos created through its platform and can be used for asynchronous video-based discussions.

The same principle applies to addressing the needs of people who are deaf or hard of hearing, etc. Campuses that have access to the Ally accessibility check tool should be proactive in checking instructional materials from classes in which students who use screen readers are enrolled. We have good knowledge of what works and how to implement within courses from the people that have been immersed in online and hybrid course delivery, and institutions should share this information and monitor, as well as provide ongoing guidance.

On the equity front, institutions should provide guidance on the potential needs of disproportionately impacted student groups. Students might not have reliable broadband at home -- can the institution help with a list of where to find off-campus internet access or keeping facilities available to all students? Some student groups need additional support structures over distance, including online tutoring, technology support for navigating online environment and time management guidance. Institutions should share online training resources for students (and instructors), and they should consider increasing investment and availability of online tutors and advisers.

-- Madeline St. Amour contributed to this article.