Major Updates

New Distance Education Regulations Proposed by ED Includes Required Attendance-Taking, Additional Reporting – Public Comment Open Until August 23

UPCEA Members Take Note, and Make a Comment!
The US Department of Education recently released the proposed regulations for Distance Education, Return to Title IV, and TRIO. In another major announcement, they signaled in a blog post that other topics including State Authorization, cash management, and accreditation will be published by next year. The Department also updated the community that Third-Party Servicers would have its own negotiated rulemaking session and Incentive Compensation Ban would have revised guidance by the end of the year as well. Quite the substantive blog post for higher education policy wonks!

The Distance Education, Return to Title IV, and TRIO proposed regulations are available here. The public comment period runs until August 23. We encourage you to share with your institutional administration and discuss how you’d like to respond to the various proposed regulations. Those changes which are most important to the UPCEA community include:

• Require Attendance-Taking in 100% Distance Education Courses – Mandatory attendance-taking for each student for 100% distance education courses, except for dissertation research courses within doctoral programs. This is to track if federal financial aid should be returned to the ED if the student withdraws from the course or institution. If so, the institution must document the last day of attendance for that student, and if the student does not engage in a course for 14 days, must withdraw the student from the course and document that date.
  • To the Department, this requirement is not achieved by a user simply logging in to the LMS, they must take some other form of academic engagement, such as taking a test, engaging with a discussion post, etc.
  • While the Department estimates institutions can “often easily determine when students stop attending because a school’s systems can often identify when students submit assignments or interact with instructors and students during lectures and course discussions, and students are often continuously monitored to track academic engagement,” we at UPCEA estimate that this will likely require your institutions to develop and track attendance in ways that you have not previously, and may require coordination of disparate systems to make it happen.

 

• Additional Virtual Location for 100% Distance Education/Correspondence Programs – The Department is proposing that a new institutional location apply to all of an institution’s 100% distance education and correspondence programs. The Department’s goals with this new virtual location category is to capture data about an institution’s distance education programs to better measure outcomes of these programs, provide better oversight through program reviews, and determine the states where federal financial aid students are located. It also has suggested this provision for if an institution stops offering all distance education courses, as well as if an institution stops offering in-person instruction, but still has distance programs. In the Department’s words, this is to “provide greater protection for students if an institution offering both distance education and in-person instruction suspends coursework in one modality but maintains the other. Students whose modality has been discontinued and who may not wish to, or may not be able to, continue in the alternative modality, would be eligible for closed school discharges”. The Department notes the additional locations are still 100% distance education even if requirements for students to complete on-campus or residential periods of 90 days or less exist.

 

• Reporting on Title IV Student Enrollment in Distance Education or Correspondence Courses – The Department is proposing additional data to be collected on distance education and correspondence courses, which would be a much broader set of data than institutions have provided on these students and courses to this point. The Department indicated they would be collecting more data, but they indicated the specific details of that reporting have not yet been determined, but wanted to establish the general requirement ahead of releasing those details and indicated it could include program oversight audits, outcome metrics, College Scorecard program-level data, debt earnings, completion rates, the amount of Title IV funds expended on distance education programs, and the State in which the distant student is located while enrolled. They have indicated the effective date of this provision would be July 1, 2026.

 

• Disallowing Asynchronous Distance Education Clock-Hour Programs – While different from credit-hour programs that are offered on most UPCEA member institutional campuses, clock-hour programs are a measurement of the student’s minute-by-minute work on their learning. Since 2020, the Department has allowed for asynchronous clock hour instruction, but are now proposing that it be pulled back, because they believe the flexibility has been abused by providers.

 

• New Definition for 100% Distance Education Course – The Department has proposed a new definition for a Distance Education Course: “A course in which instruction takes place exclusively as described in the definition of distance education in this section notwithstanding in-person non-instructional requirements, including orientation, testing, academic support services, or residency experiences.”

These are not final regulations, and still have the opportunity for the community to shape the final rules. We encourage our membership to review the draft regulations and provide their insights and comments to the Department before August 23. Your analysis and feedback are crucial for shaping the final regulations. Share this information with your distance education program administrators. This will certainly also require the review of your institutional government affairs/legal counsel and those who are involved with administering financial aid, reporting, or teaching distance education at your institution.

Take time, and make a comment before August 23. The Department is asking that your comments do the following:

• Be concise but support your claims.
• Explain your views as clearly as possible and avoid using profanity.
• Refer to specific sections and paragraphs of the proposed regulations throughout your comments, particularly in any headings that are used to organize your submission.
• Explain why you agree or disagree with the proposed regulatory text and support these reasons with data-driven evidence, including the depth and breadth of your personal or professional experiences.
• Where you disagree with the proposed regulatory text, suggest alternatives, including regulatory language, and your rationale for the alternative suggestion.

Work with your institutional government affairs team if you will be commenting on behalf of your organization. We also note that anyone can also submit comments as an individual citizen, separate from representing your institution.

If these regulations are released in their final form before November 1 of this year, they could take effect July 1, 2025.

• Read the regulations and submit a comment here.
• Read our extended CORe posting on the topic and leave a comment with how you and your institution are replying

 

Supreme Court Chevron Decision Erodes Administrative Regulatory Framework

In a landmark decision, the US Supreme Court voted 6-3 to significantly curtail the Chevron doctrine, a long-standing principle since 1984 that allowed federal agencies considerable leeway in interpreting ambiguous laws, and instructed lower courts to defer to agencies on regulatory and decision making. This shift, which restricts the power of agencies including the Department of Education, could have profound implications for higher education, and the broader US regulatory landscape. The ruling states that future regulatory changes by agencies cannot take part in interpreting laws set by Congress and gives more power to both the original legislative language, but more so with the judicial branch in setting regulatory affairs. Higher education regulations could face a period of uncertainty as courts take a more active role in interpreting statutes directly, potentially leading to a vastly different regulatory environment, with potential benefits as well as pitfalls for institutions. This change may affect everything from distance education, to accreditation standards, and we encourage colleges and universities to closely monitor and adapt to changing educational regulations. Read more.

Other News

• Latest FAFSA hiccup could delay financial aid disbursements this fall (Washington Post)
  

 

• Federal Report | Supplemental Nutrition Assistance Program: Estimated Eligibility and Receipt among Food Insecure College Students (US GAO – Government Accountability Office)