Department of Education Initiates Wide-Ranging Negotiated Rulemaking; Targets Distance Education, Competency-Based Education Regulations

The Department of Education (ED) has announced its intent to convene a negotiated rulemaking committee to develop changes to a number of regulations related to Federal Student Aid programs authorized under Title IV of the Higher Education Act (HEA). Existing law generally requires ED to use the negotiated rulemaking process to develop proposed regulations for Federal Student Aid programs rather than simply proposing new regulations via a Notice of Proposed Rulemaking (NPRM) without prior public consultation. In a negotiated rulemaking, ED "works to develop an NPRM in collaboration with representatives of the parties who will be affected significantly by the regulations"—for more information on the process, please refer to ED's frequently asked questions.

In its Federal Register announcement, ED identifies a number of issues it plans to consider during the pending rulemaking process. The ambitious list essentially falls into two categories: policies pertaining to accreditation, and policies related to promoting "greater access for students to high-quality, innovative programs." On accreditation, ED proposes examining the requirements for accrediting agencies in their oversight of member institutions and criteria used by the Secretary of Education to recognize accrediting agencies. ED also intends to consider how to simplify the process for agency recognition and review of accreditors.

On issues related to promoting student access to innovative programs, ED intends to consider revising regulations related to state authorization requirements for institutions offering distance education and correspondence courses, including disclosures about such programs to current and prospective students. EDUCAUSE members may recall that the Obama Administration had previously issued a final rule regarding state authorization of distance education programs at the end of 2016; however, the Trump administration subsequently delayed the rule's original effective date of July 2018 until July 2020. EDUCAUSE joined several other higher education groups in submitting comments on the original proposal in 2016. In addition, ED identifies the definition of "regular and substantive interaction" as it pertains to correspondence courses and distance education programs as an issue to examine in the rulemaking process.

The announcement also indicates that ED intends to consider how an institution of higher education may enter into an arrangement with an organization that is not Title IV–eligible in order to provide a portion of an educational program. Currently, no more than half of an educational program may be administered by an outside, nonaccredited entity. A pilot program is currently experimenting with lifting this cap through partnerships at several "test sites" throughout the country. ED also plans to evaluate existing regulations around direct assessment and competency-based education (CBE) programs, placing a focus "on the ability of institutions to develop, and students to progress through, innovative programs responsive to student, employer, and societal needs, including consideration of regulations that are barriers to the implementation of such programs." CBE typically consists of an instructional program utilizing direct assessment of student learning rather than credit or clock hours. According to ED, CBE programs "provide flexibility in the way that credit can be earned or awarded and provide students with personalized learning opportunities" through methods such as "online and blended learning, dual enrollment and early college high school, and project-based and community-based learning."

ED is hosting three public hearings in September at various locations across the country to solicit feedback on the initial topics identified for consideration. After conclusion of the hearings, ED will again publish a notice in the Federal Register announcing the specific topics it intends to address via negotiated rulemaking and requesting nominations for negotiators to serve on the rulemaking committee. EDUCAUSE will keep members apprised of relevant developments as they occur.

Kathryn Branson is an associate with Ulman Public Policy.