The Department of Education recently published new distance education and program integrity rules that address a number of topics raised during negotiated rulemaking sessions held in early 2024. Many of the proposals shared in the Department’s July 24, 2024, Notice of Proposed Rulemaking (NPRM) have been rescinded. Of those that remain, most are scheduled to take effect on July 1, 2026. Not all of the issues raised in the associated negotiated rulemaking sessions for these rules had even made it to the proposed rule stage, however, and the Department has now formally terminated its rulemaking efforts with regard to those remaining issue areas (i.e., State Authorization, Cash Management, and Accreditation and Related Issues). 

From the beginning, the Department’s rulemaking sessions had involved several highly controversial proposals that had the potential to significantly impact UPCEA’s membership, particularly with regard to the administration of online programs. For example, the Department was considering restricting interstate reciprocity benefits and establishing enrollment caps, requiring attendance taking for distance education courses based on recorded instances of academic engagement, and removing Title IV student aid eligibility from asynchronous clock hour programs. These could have had the effect of raising costs for institutions and students, and, in some cases, may have actually resulted in students having fewer protections despite the Department’s stated intention to enhance those protections.     

Given the controversial nature of what was being considered during this rulemaking cycle, UPCEA—often in collaboration with several other higher education membership and advocacy organizations—raised a number of questions and concerns that were shared via letters to the Department and through public comment opportunities. Specifically, UPCEA submitted or contributed to the following: 

• May 2024 Letter to Department of ED Re: State Authorization Reciprocity
• June 2024 Letter to the Department of ED Re: Distance Edu. Attendance, Data, and Asynchronous Clock Hour Programs 
• August 2024 UPCEA Public Comment Re: ED-2024-OPE-0050
• ACE, et al, August 2024 Public Comment Re: ED–2024–OPE–0050 

Below is a summary of key issues raised in these documents along with the final decisions made by the Department.

Mandatory Attendance Taking for Distance Education

UPCEA and its collaborators expressed concern over the proposed mandate for attendance taking in distance education settings, arguing that it could lead to confusion and potential harm to students, who could be inappropriately withdrawn from courses after 14 days with no recorded instance of academic engagement. We also noted that significant administrative burden and confusion could follow for faculty and staff who may sometimes need to juggle multiple versions of attendance or track engagement across multiple platforms all while applying unique definitions to ensure accurate record keeping. 

Result. In its final rules, the Department removed its proposed provision under § 668.22(b)(3)(ii) for required attendance taking in distance education courses, stating that it was “persuaded by concerns about the need for continued development in [student engagement tracking] tools to make them consistently effective for this [attendance taking] purpose, including the need for system interoperability.” The Department did, however, express continued concern over the potential for abuse in this area but believed removing this provision for the time being would “provide more time to evaluate technological changes that can better track student engagement.” 

“Virtual Locations” and New Distance Education Data Reporting

A number of comments submitted to the Department voiced apprehension over the proposal to establish “virtual locations” largely for data reporting purposes. UPCEA and other commenters feared that this development, combined with the related proposal to establish unique distance education enrollment data reporting obligations using yet-to-be-determined prompts, would be used as a tool to diminish online education offerings. In addition to the added burden unique to distance education, there had been a concern that, in part due to the different populations of students often served through distance education, direct comparisons made across online and in-person programs could potentially produce flawed data that may, nevertheless, be used to inform future policymaking efforts. 

That being said, we did not outright oppose these changes given the potentially valuable data to be collected for research purposes. We also voiced support for students gaining easier access to closure protections through the addition of a virtual location designation, which the Department suggested would be the case. Instead of asking the Department to abandon these proposals, we sought a delay to the effective date along with more information regarding the motives and anticipated use cases for these data collection efforts. 

Result. In the final rules, the Department has removed the definition of a virtual additional location from §  600.2. In doing so, however, it uses the rationale that this provision may be unnecessary in consideration of the similar proposals relating to the expanded collection of distance education enrollment data through National Student Loan Data System (NSLDS) reporting. Though, it acknowledges this would have no effect on closed school loan discharges, which had been another policy aim of the virtual location proposal. Institutions will not be required to report new distance education enrollment information until July 1, 2027, which pushes the deadline back a full year from what had initially been proposed. Regarding concerns over the use of those data to create potentially misleading comparisons across modalities, the Department states that it “would not evaluate information about distance education in a vacuum [and various demographic] factors would also be taken into account when developing policies around distance education.” 

Asynchronous Clock Hour Courses

Regarding the Department’s proposal to remove eligibility from asynchronous clock hour programs, UPCEA and others noted that there are already requirements in place to ensure these programs still provide opportunities for regular and substantive interaction. If the concern was primarily over the lack of institutional capabilities to track engagement and ensure the proper amount of time is being spent for each “clock hour” tied to aid disbursement, meanwhile, then we suggested that more guidance on how to do this to the Department’s satisfaction might be preferable to an outright elimination of these programs. 

Result. The Department has removed this proposal from its final rules but does note that it “will continue to conduct oversight on how institutions offer any asynchronous clock hour programs and may revisit this issue at a later date through a future rulemaking effort if we find continued evidence of widespread problems.”

State Authorization Reciprocity 

While most of the questions and concerns highlighted above are reflected in public comment submissions that UPCEA participated in, there were a number of issues from this same rulemaking cycle, such as those involving state authorization, which never culminated in a proposed rule being issued by the Department. When it appeared as though such a proposal was still forthcoming, however, UPCEA and a number of other organizations co-signed a letter to the Department to express concerns over various proposals featured in issue papers that had been shared with negotiators at the time. 

Of primary concern, the Department had been considering setting enrollment limits for the applicability of reciprocity agreements such as the State Authorization Reciprocity Agreements (SARA) and permitting states to separately enforce a broad range of “closure” laws (e.g., surety bond and teach-out requirements) regardless of what a reciprocity agreement might say on the matter. These moves could have, in effect, removed some of the main benefits of SARA for institutions by requiring institutions to follow a patchwork of state laws. Additionally, these rule changes could have unintentionally removed protections from students in a number of states due to the relatively weak—if not nonexistent—distance education oversight and enforcement capabilities outside of SARA in those states. UPCEA and other organizations expressed concern over the Department’s interference with a voluntary agreement among states and institutions of higher education and asked the Department to instead allow for existing policymaking processes specific to SARA, which states have a prominent voice in, to address concerns over student protections. 

Result. The Department appeared to be receptive to these arguments. In withdrawing its state authorization rulemaking efforts, the Department stated that “it is worth evaluating how State-led efforts at improving state authorization proceed before making further regulatory changes.” The Department continues, “This particularly involves the policy modification process adopted by the National Council for State Authorization Reciprocity Agreements (NC-SARA) . . . [and] allowing this policy modification process to continue is one way to address the Department’s goals.”

Concluding Thoughts

As is reflected in the signature lines to letters and comments linked above, UPCEA engaged in this advocacy work largely through important collaborations with other organizations, including ACE, WCET, QM, OLC, the National Association of Colleges and University Business Officers, and the American Association of Community Colleges. We thank these organizations for their many contributions to the collective advocacy efforts that have been so necessary over this past year in support of online and continuing education. Likewise, we extend our thanks to individuals from UPCEA member institutions who have shared their concerns with us and the broader UPCEA community, which we have been able to amplify through these collaborative efforts. Given the amount of change that has taken place between the Notice of Proposed Rulemaking and these final rules, it appears as though these efforts, along with the 450+ public comments that ED received, have been impactful and that the Department is carefully considering the community’s input in good faith. We appreciate the Department doing so.   

A common theme found throughout the Department’s responses to public comments is that, while a number of key proposals have been withdrawn, this does not mean the Department will not provide oversight over the underlying issues that prompted these rulemaking efforts in the first place. The Department has also made clear that, as it continues in this oversight role, it may engage in future rulemaking efforts on these same topics at a later date. We recommend that institutions carefully review both the final distance education regulations and the termination notice to learn more about the potential abuses the Department had been concerned with. Additional guidance may be gleaned from the Department’s responses to public comments and descriptions of how the existing regulatory framework will be enforced to achieve the Department’s policy goals of protecting students along with the investments made by taxpayers in Title IV programs.