Distance Education and Innovation

DEPARTMENT OF EDUCATION

34 CFR Parts 600, 602 and 668

[Docket ID ED-2018-OPE-0076]

RIN 1840-AD38

Distance Education and Innovation

AGENCY:

Office of Postsecondary Education, Department of Education.

ACTION:

Final regulations.

SUMMARY:

The Secretary amends the general, establishing eligibility, maintaining eligibility, and losing eligibility sections of the Institutional Eligibility regulations issued under the Higher Education Act of 1965, as amended (HEA), related to distance education and innovation. In addition, the Secretary amends the Student Assistance General Provisions regulations issued under the HEA.

DATES:

Effective date:

These regulations are effective July 1, 2021.

Implementation date:

For the implementation dates of the included regulatory provisions, see the

Implementation Date of These Regulations

section of this document.

FOR FURTHER INFORMATION CONTACT:

For information on these Distance Education and Innovation regulations, please contact Greg Martin at (202) 453-7535 or by email at

gregory.martin@ed.gov.

If you use a telecommunications device for the deaf (TDD) or a text telephone (TTY), call the Federal Relay Service (FRS), toll free, at (800) 877-8339.

SUPPLEMENTARY INFORMATION:

Executive Summary

Purpose of This Regulatory Action:

Through this regulatory action, the Department of Education (Department or we) amends the general, establishing eligibility, maintaining eligibility, and losing eligibility sections of the Institutional Eligibility regulations issued under the Higher Education Act of 1965, as amended (HEA), related to distance education and innovation. In addition, the Secretary amends the Student Assistance General Provisions regulations issued under the HEA. A more detailed summary can be found in the

Summary of the Major Provisions of This Regulatory Action

section.

Summary of the Major Provisions of This Regulatory Action

These regulations—

• Clarify that when calculating the number of correspondence students, a student is considered “enrolled in correspondence courses” if correspondence courses constitute 50 percent or more of the courses in which the student enrolled during an award year;

• Limit the requirement for the Secretary's approval to an institution's first direct assessment program at each credential level;

• Require institutions to report to the Secretary when they add a second or subsequent direct assessment program or establish a written arrangement for an ineligible institution or organization to provide more than 25 percent, but no more than 50 percent, of a program;

• Require prompt Department action on any application an institution submits to the Secretary seeking a determination that it qualifies as an eligible institution and on any reapplications for a determination that the institution continues to meet the requirements to be an eligible institution for HEA programs;

• Allow students enrolled in eligible foreign institutions to complete up to 25 percent of an eligible program at an eligible institution in the United States; and clarify that, notwithstanding this provision, an eligible foreign institution may permit a Direct Loan borrower to perform research in the United States for not more than one academic year if the research is conducted during the dissertation phase of a doctoral program;

• Clarify the conditions under which a participating foreign institution may enter into a written arrangement with an entity that does not participate in the title IV, HEA programs;

• Provide flexibility to institutions to modify their curricula at the recommendations of industry advisory boards and without relying on a traditional faculty-led decision-making process;

• Provide flexibility to institutions when conducting clock-to-credit hour conversions to eliminate confusion about the inclusion of homework time in the clock-hour determination.

• Clarify the eligibility requirements for a direct assessment program;

• Clarify, in consideration of the challenges to institutions posed by minimum program length standards associated with occupational licensing requirements, which vary from State to State, that an institution may demonstrate a reasonable relationship between the length of a program, as defined in 20 U.S.C. 1001(b)(1), and the entry-level requirements of the occupation for which that program prepares students;

• Clarify that a student is not considered to have withdrawn for purposes of determining the amount of title IV grant or loan assistance that the student earned if the student completes all the requirements for graduation for a non-term program or a subscription-based program, if the student completes one or more modules that comprise 49 percent or more of the number of days in the payment period, or if the institution obtains written confirmation that the student will resume attendance in a subscription-based or non-term program;

• Remove provisions pertaining to the use and calculation of the Net Present Value of institutional loans for the calculation of the 90/10 ratio for proprietary institutions, because the provisions are no longer applicable;

• Clarify the satisfactory academic progress requirements for non-term credit or clock programs, term-based programs that are not a subscription-based program, and subscription-based programs;

• Clarify that the Secretary will rely on the requirements established by an institution's accrediting agency or State authorizing agency to evaluate an institution's appeal of a final audit or program review determination that includes a finding about the institution's classification of a course or program as distance education, or the institution's assignment of credit hours;

• Clarify that the Secretary may deny an institution's certification or recertification application to participate in the title IV, HEA programs if an institution is not financially responsible or does not submit its audits in a timely manner; and

• Clarify that an institution is not financially responsible if a person who exercises substantial ownership or control over an institution also exercised substantial ownership or control over another institution that closed without executing a viable teach-out plan or agreement.

Costs and Benefits

As further detailed in the

Regulatory Impact Analysis,

the benefits of the regulations include—

(1) Updating and clarifying definitions of key terms related to distance education, correspondence courses, direct assessment, and competency-based programs to support the continued development of these innovative educational methods;

(2) Identifying a disbursement process for a subscription model for competency-based education so schools know how their students can access title IV aid for them, removing one potential barrier to growth of such programs; and

(3) Eliminating references to outdated technologies and making the regulations

flexible enough to accommodate further technological advancements.

Institutions that choose to offer these programs will benefit from the clarifications of terms and processes involved in establishing and administering direct assessment programs and reduced barriers to entry. While those currently offering such programs or competency-based courses will be best positioned to offer new programs in the near-term, we expect additional institutions to take advantage of the opportunities to offer new programs. While it is more a function of continued evolution in the postsecondary market, removing the barriers to entry will increase competition and some institutions could face a cost associated with losing students to those that offer appealing new programs.

The emphasis on flexibility, workforce development, and innovative educational approaches will be beneficial to students. Students, especially non-traditional students that find the existing competency-based or distance education programs to be appealing for various reasons, can benefit from flexible pacing and different models for assessing progress. Additionally, while competency-based models are a relatively new segment of the postsecondary market, some evidence suggests that the self-pacing model and other efforts by institutions to accommodate other scheduling demands students have, and to recognize knowledge and skills gained elsewhere, may allow students to graduate with lower debt.

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However, it is not clear how students will respond, and whether more traditional students will also be attracted to competency based programs as more institutions develop them.

1

www.texaspolicy.com/new-study-less-expensive-competency-based-education-programs-just-as-good-as-traditional-programs/.

These regulations involve a significant amount of monetary transfers among the Federal Government, students, and institutions through increased Pell Grants and Federal student loans. The Department assumes students in the existing baseline who switch from one program to another will receive similar amounts of Federal aid, thus these changes will not have a significant budget impact. We estimate that new students attracted to new competency-based or other programs developed, in part, because of the clarity created by these regulations will have a net Federal budget impact over the 2020-2029 loan cohorts of $[-237] million in outlays in the primary estimate scenario and an increase in Pell Grant outlays of $1,021 million over 10 years, for a total net impact of $784 million. The Department provides additional detail related to budget estimates in the

Regulatory Impact Analysis

section and provides burden estimates in the

Paperwork Reduction Act

section.

Implementation Date of These Regulations:

Section 482(c) of the HEA requires that we publish regulations affecting programs under title IV of the HEA in final form by November 1, prior to the start of the award year (July 1) to which they apply. However, that section also permits the Secretary to designate any regulation as one that an entity subject to the regulations may choose to implement earlier and the conditions for early implementation.

The Secretary is exercising her authority under section 482(c) of the HEA to designate the regulatory changes to regulations at title 34, parts 600, 602, and 668 of the Code of Federal Regulations included in this document for early implementation beginning on September 2, 2020, at the discretion of each institution, or each agency, as appropriate. The Department will implement the regulations as soon as possible after the implementation date and will publish a separate notice announcing the timing of the implementation. Otherwise, the final regulations included in this document are effective July 1, 2021.

Analysis of Comments and Changes

We developed these regulations through negotiated rulemaking. Section 492 of the HEA requires that, before publishing any proposed regulations to implement programs under title IV of the HEA, the Secretary must obtain public involvement in the development of the proposed regulations. After obtaining advice and recommendations, the Secretary must conduct a negotiated rulemaking process to develop the proposed regulations. The negotiated rulemaking committee reached consensus on the proposed regulations that we published on April 2, 2020. The Secretary invited comments on the proposed regulations by May 4, 2020, and 238 parties submitted comments. An analysis of the comments and of the changes in the regulations since publication of the notice of proposed rulemaking (NPRM)

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follows.

2

85 FR 18638.

We group major issues according to subject, with appropriate sections of the regulations referenced in parentheses. We discuss other substantive issues under the sections of the regulations to which they pertain. Generally, we do not address minor changes, technical changes, non-substantive changes, recommended changes that the law does not authorize the Secretary to make, or comments pertaining to operational processes. We also do not typically address comments pertaining to issues that were not within the scope of the NPRM.

General Support

Comments:

Many commenters expressed support for the regulations and urged the Department not to modify them in a way that would weaken student protections. These commenters, including several students, expressed that they supported the regulation as a means of both reducing barriers to innovation and achieving greater responsiveness to workforce needs. Stating that the Department's regulations have not kept up with changing technologies, many commenters underscored the importance of these regulations considering the sudden move to distance education due to COVID-19.

Several students supporting the rule also urged instructors, institutions, accrediting agencies, or the Federal Government to do more to keep up with changing technologies, suggesting that the lessons learned during the pandemic would pay dividends in terms of better and more responsive academic programs after it is over. Several commenters said the regulations would reduce administrative burden, complement the changes made in the accreditation final rule,

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and properly balance support for innovation with protections for students and/or taxpayers.

3

84 FR 58834.

A few commenters also—

(1) praised the move to a focus on competencies and skills, rather than seat time;

(2) suggested the regulation would have the benefit of reducing costs for students;

(3) acknowledged that distance education does not necessarily make a course high- or low-quality but suggested that outdated technology and teaching methods can be to blame for lower outcomes;

(4) asserted the rule would protect students from bad actors, especially during the pandemic, and noted approvingly that even the American Bar Association, which is typically resistant to distance education, has been forced by the pandemic to embrace distance learning, along with other flexibilities; and

(5) suggested more innovative learning methods could close educational disparities and, by extension, wealth disparities, which could lead to more American innovation, including patents and other ideas that could benefit humanity.

However, one commenter expressed that while many will see the benefits of distance education after the pandemic is over, that commenter cautioned that some programs would not be appropriate to conduct fully online and that flexibility should remain for blended learning along with research to evaluate efficacy.

Other commenters supported the rule, generally noting that they— (1) appreciated the safeguards to ensure regular interaction, which would reduce the need for instructors to assign “largely pointless work” to satisfy the standard; (2) praised the clarity of the regulations, particularly the definitions; and (3) suggested the regulations will benefit the education system by allowing programs to be more specifically tailored to each student's individual needs.

One commenter said the rule would expand access to high-quality, affordable education options to a broader segment of students and that the proposals were generally fair to students, incentivized rather than punished innovation, focused quality assurance on outcomes, simplified eligibility requirements, and protected student and taxpayer investments.

One commenter supported the Department's effort to realign the roles and responsibilities of the regulatory triad in postsecondary education: The Federal Government, State authorizing agencies, and accrediting agencies.

Another commenter noted that institutions have been slow to adopt competency-based education (CBE) programs, often due to Federal regulations, and further suggested these programs could particularly benefit veterans and military-connected students and hoped institutions would develop new CBE programs because of these regulations.

Discussion:

The Department thanks these commenters for their support for these regulations, including the greater clarity provided in a number of definitions. We appreciate hearing from student commenters who shared their perspectives, especially as they relate to the impact of the COVID-19 pandemic on their educational experience, and we appreciate their efforts to embrace innovation, and the optimism they expressed that these regulations will help them and students to follow. The Department agrees with many commenters that it is best to allow institutions to better serve students utilizing the latest technology and to do so now, given the challenges many students and institutions are facing.

The Department agrees that the proposed rule appropriately balances the need for innovation with strong protections for students and taxpayers. We also agree with the commenter who suggested that some disciplines may require at least some in-person instruction and noted that instructors, institutions, and accrediting agencies are in the best position to determine whether distance, blended, or ground-based instruction is most appropriate. The Department agrees that additional research could help it make even more informed decisions in the future. We also agree that veterans, military-connected students, and many other students can benefit from CBE programs and that more students will benefit from these programs because of these regulations.

Changes:

None.

Comments:

One commenter praised the negotiation process, calling it open, engaging, thorough, and fair, resulting in regulations that provide better clarity and protections for students. The commenter stated that the subcommittee, which made a complete set of recommendations to the main committee, engaged in active and informed interaction.

One commenter supported the Department's effort to select negotiators representing diverse perspectives. The commenter expressed gratitude for the significant time and effort negotiators spent on this rulemaking. This commenter and several others also praised the work of the negotiators and the Department in reaching consensus.

One commenter supported the consensus agreement and the proposed rule for clarifying and reaffirming the appropriate role of accrediting agencies in ensuring the integrity of distance education programs. The commenter also asked that the Department not include additional provisions that were not negotiated.

Discussion:

We appreciate the support from commenters and agree that one benefit of these regulations is to ensure clarity of the role of accrediting agencies in matters related to distance education. We note that the Administrative Procedure Act (APA) does not permit us to include additional provisions that were not subject to the rulemaking effort.

Changes:

None.

Comments:

Many commenters urged the Department to maintain consensus language in the final rule and not make changes that would weaken protections for students.

Discussion:

We appreciate these commenters' suggestion and agree that the final rule should maintain the consensus language to the greatest extent practicable. The Department is leaving most of the consensus language in the proposed rule unchanged. As discussed elsewhere, the Department is making some changes at the request of commenters, including to permit the use of asynchronous clock hours offered through distance education and subscription-based disbursement for programs not offered through direct assessment programs. As discussed in this document, the Department believes the benefits of these changes outweigh any risks. However, the Department believes the final rule will maintain the important protections for students presented in the NPRM.

Changes:

None.

Comments:

Several commenters acknowledged that the COVID-19 pandemic necessitates some flexibility in the short-term but greater oversight in the long-term regarding distance education.

Discussion:

The Department believes, as detailed elsewhere, that the regulations appropriately consider both protections for consumers and taxpayers as well as the need for innovation. While we did not know during rulemaking sessions that a pandemic was in our future, these regulations address the needs of both institutions and students in response to COVID-19 and serve as additional evidence that the rulemaking effort resulted in a needed and meaningful modernization of our prior regulations. The Department also believes that there need not be a tradeoff between consumer protection and innovation.

Changes:

None.

Comments:

Several commenters supported many of the provisions of the proposed rule while suggesting that the lack of safeguards generally, or with regard to distance education in particular, may have downsides that necessitate strong consumer protections to protect students and some groups of students in particular (including veterans and military-connected students, low-income students, students of color, and those lacking academic preparation).

Additionally, several commenters suggested that proprietary institutions would be especially likely to treat students unfairly.

Discussion:

The Department agrees that students should select programs that align well with their prior academic preparation, their learning style, and

their lifestyle. Additionally, we believe that all educational programs must continue to have proper oversight by the Department, States, and accrediting agencies. While protections for all students are important, the benefits of a program should not be denied to some students simply because the program is not the right choice for others. The Department notes that the growth of adaptive learning and artificial intelligence tools in recent years have allowed institutions to provide more personalized academic supports, at scale, that may be even better than what would be available in a traditional classroom, particularly in traditional large lecture courses. These technologies may facilitate more regular and effective faculty-student interaction than a traditional classroom format enables.

The Department believes the enforcement of provisions protecting students is vital and should occur without regard to the tax status of the institution in question unless Congress directs the Department otherwise. The Department takes all allegations of harm to students seriously and does not condone improper conduct by any type of institution whether public, private non-profit, or proprietary.

Changes:

None.

Comments:

One commenter urged the Department to avoid provisions that would create unintended consequences for osteopathic clinical education programs, including students completing out-of-State clinical rotations. The commenter further requested that the Department avoid new financial and administrative burdens during the COVID-19 pandemic.

Discussion:

The Department considered clinical education programs in this rulemaking as well as the accreditation rulemaking, which covered issues related to State authorization of distance education and are effective July 1, 2020. These distance education and innovation regulations become effective July 1, 2021, allowing institutions and others adequate time to plan for their implementation. Early implementation is optional. We do not anticipate that these regulations will create unique burdens on osteopathic clinical education programs, which may elect to not integrate or expand distance learning opportunities within those programs. The Department sought to reduce financial and regulatory burden overall during this rulemaking. The Regulatory Impact Analysis and Paperwork Reduction Act sections of this final rule contain additional information about cost and burden.

Changes:

None.

General Opposition

Comments:

Several commenters expressed opposition to the final regulations because of concerns over whether they would weaken existing regulatory requirements on distance education programs. Other commenters opposed the final regulations because they worried about the potential negative impacts on colleges, universities, and the learning environments of all students. One of these commenters suggested that the cumulative effect of the proposed rule would allow for drastic and unnecessary changes in the name of efficiency and innovation, while sacrificing students' learning and protection in the process, leading to further damage to students and taxpayers. Many of these commenters expressed similar concerns that the proposed changes would expose students and taxpayer-funded Federal aid dollars to undue risk.

Discussion:

We thank the commenters for expressing their concerns, and we have considered their objections. We do not share their apprehension about the predicted consequences of these final regulations. In fact, we believe that this final rule properly balances the need to protect student interests and guard taxpayer dollars, while also providing innovators the tools to deliver high-quality, distance education for students in the 21st century. We do not believe these goals must necessarily come at the expense of one another.

Changes:

None.

Comments:

Some commenters stated that the Department should rescind the proposed regulations and redraft new regulations that protect educational quality, the interests of students and taxpayers, and the general higher education community.

Another commenter agreed that the proposed regulations should be rescinded, in part, because the Department did not conduct reasoned rulemaking as required by the APA. This commenter suggested that some negotiators did not understand the rules and that the Department “stacked the deck” with an unmanageable agenda, created negotiating committees stacked heavily in favor of industry, and starved the committee of any real data or information to inform the rulemaking. Further, the commenter stated that the Department “bullied” negotiators who “dared to oppose the Department's proposals and threatened others with promises of worse regulations if they refused to accede.” The commenter concluded that the result was an “illegitimate” vote of consensus. The same commenter added that the Department reneged on its historic consensus and changed the final regulations without sufficient factual justification. The commenter stated that the Department relied on “little more than anecdotes, industry proposals, and ideology” in its original proposals. The commenter also added that the Distance Education subcommittee should have more fully included student and taxpayer voices and interests and that the Department failed to follow its own agreed to protocols by not providing a preamble to members to review and comment on prior to publication. Similarly, a different commenter remarked that student veterans were not sufficiently represented, and more similar individuals should have been added to the negotiating committees.

Another commenter argued that the livestreaming was not open to the public and that the consensus vote on the regulations could not be considered either valid or indicative of general support from any of the communities around the negotiation table. Further, the commenter stated that the data provided to the negotiators was disjointed and insufficient and that the Department should incorporate additional reporting requirements for distance education purposes, specifically reporting about the distance education status of students who take Federal loans.

A group of commenters objected to the rulemaking process, stating that the Department appointed negotiators who appeared to have been selected, not for their subject-matter expertise, but for their ties to the for-profit college industry.

Discussion:

As we stated in the final regulations on student assistance general provisions, the Secretary's recognition of accrediting agencies, and the Secretary's recognition procedures for State agencies published on November 1, 2019, we disagree with the commenters who said that the Department's rulemaking process was flawed.

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It is not uncommon for the Department to address multiple topics with a single negotiated rulemaking committee, nor was this the first time that the Department utilized non-voting subcommittees to delve into a specific topic and provide recommendations to the main committee. The subcommittee's recommendations were not binding on the members of the main committee, who were free to discuss the issues in as much detail as they required to come to a consensus agreement. The Department notes that we added an

additional negotiator, and an additional negotiating session at the request of negotiators, to represent all relevant constituencies and in hope of reaching consensus.

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See:

84 FR 58836.

The Department disagrees with the commenter that our efforts to achieve consensus were inappropriate. Contrary to the commenter's assertions, the Department compromised countless times, moved away from its initial proposals, and accepted negotiators' request for substantially more time to negotiate.

Regarding the makeup of the subcommittee, the process of negotiated rulemaking ensures that we consider a broad range of interests in the development of regulations. Specifically, negotiated rulemaking is designed to enhance the rulemaking process through the involvement of all parties significantly affected by the topics for which we will develop the regulations.

Accordingly, section 492(b)(1) of the HEA, 20 U.S.C. 1098a(b)(1), requires that the Department choose negotiators from groups representing many different constituencies. The Department selected individuals with demonstrated expertise or experience in the relevant subjects under negotiation, reflecting the diversity of higher education interests and stakeholder groups, large and small, national, State, and local. In addition, the Department selected negotiators with the goal of providing adequate representation for the affected parties while keeping the size of the committee manageable. At the request of negotiators, the Department agreed to add a representative of State Higher Education Executive Officers on the main committee. In addition, a representative of the New York Attorney General was added as a member to the subcommittee.

Students and consumer protection advocates were represented by non-Federal negotiators on the full committee and the subcommittee—student veterans were well-represented on the full committee—with primary and alternate representatives for each of these constituencies. Moreover, the Department conducted three public hearings before the negotiated rulemaking began and provided time for public comment on each of the 12 days that the main committee convened.

We disagree with the commenters who stated that the Department failed to provide data or evidence, or stated that the data was disjointed or insufficient, to support the need for the proposed regulatory changes during negotiated rulemaking. The Department was unable to fulfill several data requests made by negotiators because the information was not available, but we do not believe the absence of those data prevented negotiators from considering reasoned proposals.

We appreciate the commenter's proposal to add reporting requirements to the final regulations, but we do not adopt their proposal. The Department is comfortable with the current regime of reporting requirements for distance education and does not wish to create new burden on institutions that rely on or integrate distance education technology in their education programs.

We acknowledge that there were temporary connectivity issues with the livestreaming of the distance education subcommittee. While we regret the interruption, the Department worked quickly to restore the connection to ensure that interested parties could view the discussion. The sessions were also recorded and can be viewed on the Department's YouTube channel.

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The proceedings of the main committee can be viewed at

edstream.ed.gov.

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U.S. Department of Education YouTube page,

www.youtube.com/user/usedgov/videos.

We based the proposed regulatory changes on many factors, including public feedback, research outlined in greater detail in the NPRM, and emerging trends in postsecondary education. Specifically, the Department developed a list of proposed regulatory provisions based on advice and recommendations submitted by individuals and organizations as testimony in a series of three public hearings in September of 2018, as well as written comments submitted directly to the Department.

Changes:

None.

Comments:

One commenter provided statistics showing the types of institutions that are active in the online education industry and on the growing expansion of online education. This commenter concluded that growth has not correlated with increased access to minority and non-traditional students or more quality programs. The commenter also referenced lawsuits against online education providers and outlined arguments against distance education.

Discussion:

We appreciate the information provided by the commenter, as well as the outline of the arguments against distance education. We note, however, that institutions from all sectors-regardless of whether they provide online or in-person classroom instruction-have been the subject of lawsuits and borrower defense claims. We reaffirm that legal action and the borrower defense process remain available to all students, notwithstanding these distance education regulations.

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6

84 FR 49788.

The Department acknowledges the commenter's reference to litigation against online education providers, but those legal actions do not direct the Department's regulatory work. We also acknowledge the arguments against distance education, but the Department does not advocate for one type of education delivery system over any other. The Department supports education innovation that is rigorous, meets students' needs, and assists students in achieving their educational goals. These final regulations assist in removing unnecessary barriers to that innovation, while also assuring that online programs remain academically rigorous, well-planned, and appropriate.

Changes:

None.

Comments:

One commenter remarked that the Department has led taxpayers to believe that changes to the distance education regulations will allow students to “fast-track their education and save money” and that the taxpayer will eventually pay the bill. The commenter also wrote that CBE and career technology training is the “adult version of Common Core.”

Another commenter stated the proposed regulations are intended to create tax breaks and ease burdens on wealthy taxpayers.

Discussion:

The Department is confused by the commenter who suggested that the intended purpose of the final rule was to create tax breaks and ease the burden on wealthy taxpayers. The Department is not empowered to create tax breaks.

We are similarly confused by the commenter who stated that CBE and career technology training is the “adult version of Common Core.” The Department is not attempting to dictate academic content or establish national content standards, so we are unclear on any similarity to a set of elementary and secondary English language arts and mathematics standards. While some students may be able to complete their program more quickly, the Department disagrees that this will result in some sort of “balance” that must be covered by taxpayers. The Department also never stated that the final rule would allow students to “fast-track” their education. We believe that students should be able to access educational services that are appropriate to their needs, provide them with high-quality training and education, and meet the requirements of the HEA, as amended.

Changes:

None.

Comments:

One commenter stated that any weakening of the protections included in the consensus language would present a serious risk to all students, especially Latino students, who, according to the commenter, are overrepresented at institutions that, on average, produce worse outcomes for students. Another commenter similarly remarked that non-traditional students would be negatively impacted by the final regulations.

Discussion:

We appreciate the commenters' submissions and share their desire for all students—men, women, minorities, under-represented populations, and non-traditional populations—to have access to high-quality education services.

The Department rejects the notion that student protections are weakened in the proposed rule or that any such weakening disproportionately impacts one student population over another. As we stated in the Program Integrity: Gainful Employment final regulations, the Department believes that more must be done to improve outcomes for high-risk students, and more options must be made available to students for whom college—and, especially, the traditional college experience—is not the best or preferred option.

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We believe that high-quality distance education programs, like the ones envisioned by the members of the subcommittee, can and do meet students' unique needs and expand educational opportunities to students previously underserved.

7

84 FR 31433.

Changes:

None.

Comments:

A group of commenters stated that the Department is attempting to use its deregulatory agenda to override congressional intent to ensure program quality and to protect students, taxpayers, and the integrity of the Federal financial aid programs. The commenters also suggest that the Department abused its rulemaking authority by rolling back legislative protections that guard the integrity of the student financial aid system. The commenters argued that the Department's actions further jeopardize students' opportunities to access a higher education system that promotes economic mobility. Finally, the commenters concluded that the Department's agenda is proof of its intent to disregard its obligation to responsibly administer Federal Student Aid (FSA) programs.

Discussion:

The Department thanks the commenters for their submission. We share their concern for protecting students, taxpayers, and the integrity of Federal financial aid programs. The consensus language reflects that concern. The Department notes that it is not within our regulatory authority to roll back legislative protections; our regulations—and these final regulations specifically—must fall within the parameters authorized by statute.

We disagree with commenter's suggestion that the final regulations jeopardize opportunities to access higher education. This final rule promotes more high-quality, distance education opportunities for students who are not otherwise capable of attending traditional classroom-based courses. In fact, much of our work is animated by the desire to expand opportunities through education for economic mobility and advancement.

The Department takes its responsibility to administer the title IV programs seriously and strenuously seeks to guard taxpayers' dollars in the operation of those programs. We disagree with the commenters' suggestions otherwise.

Finally, legislators have the ability to further clarify their intent through future legislative action. We look forward to working with Congress on any such actions to promote educational opportunities for all students.

Changes:

None.

Comments:

One commenter wrote that the intent of the final regulations is to loosen the restrictions on institutions offering distance learning. The commenter stated that allowing schools to have more latitude over certain rules leaves room for schools to cut corners to save money at the expense of quality. The commenter added that the Department's contention that the reduction in regulation will increase the number of programs offered by institutions is exactly what predatory, for-profit, and fraudulent institutions want and that it will inevitably make it easier for such institutions to access financial aid funds at the cost of the students and taxpayers. Finally, the commenter said that loosening restrictions would allow a school to recycle pre-recorded lectures, give the student a test, and issue unwarranted degrees if the student passes. The commenter was concerned that such an outcome would greatly impact instructors' financial well-being and the quality of the workforce.

Discussion:

The intent of the final regulations is not to loosen restrictions on any type of institution. The Department will continue to hold all education providers accountable. The Department does not condone the behavior of those who wrongfully cut corners to save money, take advantage of students, misrepresent the selectivity of their online programs, engage in pay-to-play admissions schemes, engage in predatory advertisement or enrollment activities, or fraudulently misrepresent their educational programs—and likely student outcomes. We will take necessary actions to hold institutions accountable, regardless of their tax status or organizational structure.

The Department appreciates the commenters concerns and addresses the point regarding the use of recycled or pre-recorded lectures in the appropriate sections below. However, we note that such a concern is not limited to distance learning modalities.

Changes:

None.

Comments:

Many commenters asked the Department to rescind the proposed rule or, alternatively, delay its implementation, to maintain existing rules protecting the role of faculty and student interaction and restricting outsourcing. This would allow Congress and the public to better assess the needs of students and institutions. One of these commenters wrote that the Department has a responsibility to avoid making changes to distance education that would open the door to instruction without interaction between students and faculty, leaving students entirely reliant on software, apps, games, and prerecorded video. This commenter also wrote that the proposed rules would “undermine meaningful instruction by replacing it with standardized exams.” The commenter concluded that further deregulation in the distance education environment did not make sense and that it would be dangerous to students and faculty who are trying to design high-quality programs to weaken the consensus language by expanding CBE programs.

Discussion:

The Department disagrees with the commenter's suggestion. We see no compelling reason, nor has one been provided through the public comment process, to rescind or delay the final regulations. We also note that reauthorization of the HEA is many years overdue, and statute currently references technologies that are sorely outdated. Therefore, we cannot rely solely on Congress to respond to the need for higher education to adapt and evolve to serve the needs of students.

While we understand that some may oppose the growth of distance education, largely because of concerns about what this means to the job prospects of current and future educators, those concerns are misplaced. The role of the instructor is critical in high-quality distance education, as explained in the appropriate section below, and these regulations reaffirm the importance of

regular and substantive interaction as a key element that distinguishes between distance learning and correspondence education.

We do not agree that the proposed rule would undermine meaningful instruction by replacing it with standardized exams and are confident that these final regulations do the opposite.

Changes:

None.

Comments:

One commenter suggested that the Department should only allow some types of programs to offer distance education courses. The commenter advocated for a rigid classification, reviewed by the Department, of subject matter areas that would be eligible for remote classes. The commenter stated that the basis for such a proposal is that some careers, such as nursing and teaching, require real world experiences and that the value that professors bring to their students is not the same in an online program.

Discussion:

The Department thanks the commenter for this proposal, but we do not adopt this change. While we recognize that the experiences of online learning and traditional classroom learning can be very different, the Department believes that high-quality learning is possible in both environments. We do not wish to forestall students interested in nursing and teaching to be kept out of those fields because they are not able to attend traditional, in-person classes. In many instances, distance learning opportunities are limited to students who are already working in fields such as teaching or nursing, and who do not need additional hands-on experiences. In many instances, distance learning enables practicing professionals to complete post-graduate certificates or graduate degrees. Moreover, for many occupations, accrediting agencies and State licensing boards restrict the use of distance learning within certain programs.

As we have seen during the COVID-19 pandemic, some accrediting agencies and State licensing boards are beginning to recognize the opportunities presented by distance learning and are permitting certain portions of programs to be provided through distance modalities. We will continue to rely on accrediting agencies and State licensing boards to determine when and if distance learning opportunities meet the education and training needs of students in particular fields.

Changes:

None.

Comments:

Many commenters referenced COVID-19 in their submissions to the Department and remarked upon the expanded prevalence of distance education.

One commenter suggested that the proposed rule should be deliberated and commented on after the pandemic is over because the “last thing on American's [sic] minds” is the accreditation of online schools.

Many commenters concluded that a 30-day comment period during a pandemic was not sufficient to thoroughly review the proposed rules. These commenters requested that the Department delay the implementation of the proposed rules.

A group of commenters stated that, at this pivotal moment and informed by institutions' experiences during the pandemic, any weakening of strong protections for students and taxpayers would open the door for predatory actors to repeat past abuses, putting the most vulnerable students at even greater risk.

One commenter stated that the Department cannot, in good faith, move forward with any of the issues in the final regulations without first grappling with the massive changes that the COVID-19 crisis will bring to online education.

A group of commenters proposed that the Department reopen the rulemaking process or postpone the enactment of the final regulations to allow for additional comments. Many of these commenters noted potential difficulty in responding to the NPRM because of COVID-19. One commenter suggested that military and veterans' communities should be allotted extra time to provide comments. Another commenter noted the need for the Department to put the needs of our nation's college students before the needs of “distance education opportunists.”

Discussion:

While we acknowledge that the NPRM may not have been top-of-mind for most Americans during the COVID-19 pandemic, the Department is confident that the 30-day public comment period was an adequate time period for interested parties to submit comments. Because we reached consensus during negotiated rulemaking, the proposed regulatory language was available to the public at the conclusion of the final negotiating session approximately one full year before the comment period began, which afforded interested parties additional time to begin formulating their comments.

Prior to issuing the proposed regulations, the Department conducted three public hearings and four negotiated rulemaking sessions, where stakeholders and members of the public had an opportunity to weigh in on the development of much of the language reflected in the proposed regulations.

In addition, the 30-day public comment period was necessary to allow us to meet the HEA's master calendar requirements. Under those requirements, the Department must publish final regulations by November 1, 2020, for them to be effective on July 1, 2021. Delaying the effective date of these regulations would unnecessarily delay the realization of the benefits associated with these changes.

Changes:

None.

Correspondence Courses: Definition and Limitations (§§ 600.2 and 600.7)

Comments:

Two commenters expressed support for the proposed definition of the term “correspondence course.” One of those commenters specifically supported the elimination of the reference to self-pacing in the previous definition of “correspondence course” and indicated that the proposed definition makes it clearer that self-paced programs are not necessarily correspondence programs. One commenter also expressed support for the clarification regarding the definition of a “correspondence student” in proposed § 600.7(b)(2), indicating that the specificity in the new definition would support new and innovative academic models.

Discussion:

The Department thanks the commenters for their support.

Changes:

None.

Comments:

Several commenters opposed the Department's proposed changes to the definition of “correspondence course,” arguing that the changes would make the distinction between distance education and correspondence courses less clear. These commenters stressed the importance of maintaining that distinction given the more limited amount of support by qualified instructors in correspondence courses and past abuses associated with correspondence study. Another commenter indicated that the existing definition of “correspondence course” already adequately distinguished correspondence education from distance education and did not need to be changed.

Discussion:

We agree with the commenter about the importance of support by qualified instructors, especially given the emphasis of that concept in the statutory definition of “distance education,” which requires “regular and substantive interaction” between students and instructors. We also agree that it is important for the regulatory definitions of distance education and correspondence courses

to be sufficiently distinct, both to implement the statutory distinction between the terms and to ensure that institutions are able to design programs in a way that maintains compliance and avoids audit or program review findings with respect to their online programs. However, we disagree that the proposed changes will blur the distinction between the two terms.

The most significant change made to the definition of “correspondence course” in these regulations is the removal of the concept of self-pacing, which is not vital to the distinction between correspondence courses and distance education. The HEA also does not mention the concept of self-pacing, nor does it express that such a condition would require a course to be treated as offered through correspondence education rather than through distance education. We believe that the aspects of the definition of “correspondence course” that have been maintained in the definition—for example, that interaction in such a course is limited, not regular and substantive, and primarily initiated by the student—are more than adequate to preserve the important regulatory distinction between distance education and correspondence courses.

Changes:

None.

Comments:

One commenter objected to the proposed definition of “correspondence student” under proposed § 600.7(b)(2), asserting that the definition weakens the distinction between distance education and correspondence courses and could result in a larger number of participating institutions and students engaging in correspondence study.

Discussion:

We disagree that the proposed changes to § 600.7(b)(2) will weaken the distinction between distance education and correspondence courses or result in a greater number of institutions or students engaging in correspondence study. The only impact of the changes is to clarify how to calculate the number of correspondence students for the purpose of determining whether an institution has exceeded the statutory limitation on the number of correspondence students that may be enrolled at an eligible institution during an award year. The other relevant statutory and regulatory restrictions on correspondence study that discourage institutions from offering correspondence programs—for example, the institutional eligibility limitations, the restriction to half-time enrollment status for purposes of calculating Pell Grant disbursement amounts, and the limitations on the components of cost of attendance for students enrolled solely in correspondence study—would remain unchanged.

Changes:

None.

Definition of Academic Engagement (§ 600.2)

Comments:

Many commenters supported the Department's proposed definition of “academic engagement.” Several commenters noted that by moving key concepts on attendance and academic activities from the Return of title IV funds (R2T4) regulations (under § 668.22) to a new definition of “academic engagement” in § 600.2, the Department emphasizes the importance of active student participation in other parts of the regulations. One commenter also noted that the definition would expand academic quality and accountability. Two commenters specifically stressed their support of the Department's acknowledgement within the definition that student academic engagement can take on different forms, including interactive online courses and computer instruction.

Two commenters specifically expressed support for the Department's inclusion of § 600.2(2)(iv), “Participating in an interactive tutorial, webinar, or other interactive computer-assisted instruction,” in the definition. The commenters indicated that they believe this inclusion will help clarify the role adaptive learning and other technologies can play in providing academic engagement.

Discussion:

The Department thanks the commenters for their support.

Changes:

None.

Comments:

Several commenters requested that the Department include new categories of activities under the definition of “academic engagement.” Two commenters asked that the Department add a category for education offered through virtual and augmented reality because those modalities are becoming more commonly used in higher education.

One commenter suggested that the Department include as a category under “academic engagement” instruction through computer-mediated adaptive instruction that alters the learning experience for each student based on that student's needs. Another commenter requested that the Department clarify that instructor interaction does not have to occur exclusively with a human instructor.

Discussion:

As the Department discussed in the preamble to the NPRM (85 FR 18638-18702), we consider “other interactive computer-assisted instruction” to include the use of artificial intelligence or other adaptive learning tools where the student is receiving feedback from technology-mediated instruction. Computer-assisted instruction would also include instruction through virtual or augmented reality, or any other form of instruction in which a student actively participates in a computer-based or computer-mediated learning environment, with or without the presence of a human instructor. An explicit goal of this rulemaking has been to reduce the need for updates to regulation when new technologies are developed, and so this definition is also inclusive of technologies that are in their infancy or not yet invented as long as they meet the regulation's other requirements. Therefore, because the types of learning described by the commenters (and others) are already accommodated in the proposed definition of “academic engagement,” we do not believe it is necessary to add additional categories.

Changes:

None.

Comments:

One commenter expressed concern that the proposed definition of “academic engagement” would require more than simply actively logging into a website. The commenter indicated that this could cause undue burden for students who were unable to academically engage during normal hours or afford the technologies required by institutions to demonstrate academic engagement as defined.

Another commenter voiced a concern that paragraph (3)(iv) of the proposed definition, which states that academic engagement does not include participating in academic counseling or advisement, could discourage instructors from taking the time to speak with students about their academic future or professional goals. The commenter mentioned that depending on the nature of the course, it may be difficult at times for instructors to differentiate between interacting with students about “academic matters,” which qualify as academic engagement, and “academic counseling and advisement,” which does not qualify. The commenter requested that the Department remove the exclusion of academic counseling or advisement from the definition of academic engagement.

Discussion:

We disagree that the definition of “academic engagement” causes undue burden for students. Many institutions previously believed that, under the Department's prior regulations, students were required to not only log in, but engage in an activity weekly for which the institution maintains documentation to prove that the student was engaged every couple of days. This was identified as a

burdensome requirement that significantly exceeds requirements for ground-based instruction, and that often requires students enrolled in distance education to make time for what is otherwise viewed as “busy work.” The new regulation clarifies that engagement must be meaningful in order to be used as the basis for complying with the Department's related requirements (such as identifying a student's withdrawal date), but does not require, for example, students to post a non-substantive blog post each week simply to “check the box” on documenting participation.

The definition does not require a student to log in or participate in a course or learning environment at a particular time, nor does it require or incentivize institutions to demand the use of expensive technologies to demonstrate academic engagement. The definition does rely on the concept of active participation by a student in his or her learning, which the Department believes is a necessary requirement for academic engagement. This concept of active participation—which cannot be demonstrated merely by documenting that a student has logged into an online system—is also vital to other regulatory requirements, including for purposes of determining a student's withdrawal date under the R2T4 regulations.

For similar reasons, we also decline to remove the exclusion of academic counseling and advisement from the definition of “academic engagement.” While the Department views advisory activities related to a student's academic or career trajectory as an important component of many postsecondary programs, such advising by itself does not demonstrate that a student is participating or engaged in his or her academic program. Negotiators agreed that to the extent a qualified instructor is providing advising relevant to a specific course—for example, explaining where a student can find answers to content-related questions, or recommending a particular approach to a writing assignment for the course—academic engagement is taking place. However, general academic or technical advising that is provided outside of a specific course, and that is often provided by someone who does not qualify as an instructor for the course in which the student must be academically engaged—for example, guidance regarding which classes the student plans to take in the future, or technical support with instructional technology—does not constitute academic engagement.

Changes:

None.

Comments:

Several commenters asked the Department to clarify its position regarding asynchronous academic engagement. The commenters indicated that while the Department specifically mentions synchronous instruction in the definition, it does not mention asynchronous instruction even though asynchronous instruction is referenced elsewhere, both in the “distance education” definition in § 600.2 and as part of the new “week of instruction” definition in § 668.3. One commenter specifically suggested including “or asynchronous” after “synchronous” in paragraph (2)(i) of the definition to clarify that asynchronous attendance and participation in the classroom is included when documenting academic engagement in an online program. Another commenter asserted that though certain asynchronous activities, such as engagement in interactive forms of computer-assisted instruction, might be read into the listed activities in paragraph (2)(iv) of the definition, the omission of a direct reference to asynchronous instruction makes it difficult to have confidence in such an interpretation.

Discussion:

The Department's intent was not to exclude asynchronous participation in learning activities from the definition of academic engagement. Asynchronous academic engagement could occur under any of the categories described in the definition except for the category described under paragraph (2)(i) that describes attendance at a synchronous lecture, recitation, or field or laboratory activity. For example, a student can work on an academic assignment—described under paragraph (2)(ii) of the definition—at the time of his or her choosing, and submission of that assignment is an asynchronous learning activity that does not require real-time interaction with an instructor. Similarly, a student could demonstrate academic engagement under paragraph (2)(iv), “participating in an interactive tutorial, webinar, or other interactive computer-assisted instruction,” by engaging in a presentation through a virtual or augmented reality system or by participating in an online learning activity that uses artificial intelligence or adaptive learning. We do not believe that it is necessary to add the word “asynchronous” to the definition given the incorporation of this concept in each of these activities. We also decline to remove the word “synchronous” from paragraph (2)(i), since in that context it is used to describe a particular type of learning activity that is performed in real time with an instructor.

Changes:

None.

Definition of Additional Location (§ 600.2)

Comments:

One commenter requested clarification about the addition of a definition of “additional location.”

Discussion:

We did not seek comment on the “additional location” definition in the NPRM that we address in this final rule. Instead, we sought comments on that definition in an NPRM published in the

Federal Register

on June 12, 2019 (84 FR 27404). That NPRM included Accreditation-related definitions, including the definition of “additional location.” We published a final rule that included the definition of “additional location” in the

Federal Register

on November 1, 2019 (84 FR 58834) in which we addressed comments we received related to the definition.

Changes:

None.

Definition of a Clock Hour (§ 600.2)

Comments:

Numerous commenters voiced disagreement with the provisions in the Department's proposed definition of the term “clock hour” that require each clock hour in a distance education program to include synchronous instruction where students have an opportunity to interact with instructors and asked the Department to reconsider this requirement.

Several commenters indicated that the proposed clock hour definition regarding distance education was too restrictive and should conform to the Department's definition of “distance education,” which allows for “regular and substantive interaction between the students and the instructor or instructors, either synchronously or asynchronously.” The commenters asked the Department to reconsider whether clock hours could be earned through asynchronous instruction, noting that several educational platforms are already capable of monitoring a student's participation and clocking the student out if active engagement ceases.

One commenter noted the Department's reluctance to support asynchronous distance education (ADE) instruction within the clock hour definition was most likely due to the concern as to whether a clock hour student's required “seat time”—50 minutes in a 60-minute period—could be validated. The commenter indicated that current technology already provides effective tools which, if properly incorporated into an asynchronous distance education platform, marry effective program instruction with effective “seat time” validation. As explained by the commenter, an

electronic synchronous distance education platform would include such components as sign-in assurance, time monitoring through trackable digital media assets, automated sign-off for inactivity, live student to student and student to instructor activities and automated Q & A, and testing processes. Based on this information, the commenter requested that the Department modify its proposed definition of a “clock hour” to permit instruction provided via electronic synchronous distance education.

One commenter stressed that permitting the development of asynchronous instruction in clock hour programs allows for the kind of instructional flexibility needed for career and technical education providers to use new methods of simulated, technology-mediated instruction without constraint or fear of compliance findings.

Several commenters voiced a strong desire to afford the same flexibilities to students enrolled in clock hour distance education courses as students enrolled in credit hour distance education programs. To that end, one commenter indicated that program structure (clock hours or credit hours) is often based on institutional or State governance and has no relationship to the quality or content of a program. The commenters asserted that students enrolled in clock hour programs should not be penalized merely due to institutional structure.

Another commenter stated that limiting clock hour distance education coursework to synchronous online classes would limit the convenience and flexibility to students of access to course content at any time or place. Several commenters expressed concerns that limiting distance education clock hour eligibility to synchronous activities could limit innovation and discourage institutions from creating more flexible and accessible learning experiences which could reduce potential barriers to access and completion of postsecondary programs and promote a more diverse student population.

Several commenters stressed that the Department authorizes postsecondary institutions to offer eligible postsecondary programs in a distance learning format as approved by the institution's accrediting agency and that the exact same standards, quality assurance, integrity and accountability measures used to approve traditional on-campus programs are also applied to the distance education programs approved by the accrediting bodies.

Several more commenters indicated that current technology in higher education attendance monitoring provides systems that monitor participation, proctor exams, verify attendance and provide tools for students to interact with instructors at the time and place of their choosing. The commenters further explained that online content is most often used to supplement in-person training or lab work and that asynchronous instruction can now be monitored by a school through many educational platforms, students can be clocked out for inactivity, and instructors and students have a variety of ways to interact with each other and review various course materials. Many commenters expressed a belief that current technology available to students and educators allow for the same objectives to be met in an asynchronous format, while allowing for more flexibility to overcome challenges related to geography, learning preferences, work or family obligations, disabilities, or resources. One commenter suggested asynchronous learning could include the recording of classes to be viewed within a specified time with periodic class meetings to answer questions.

Several commenters urged the Department to allow asynchronous instruction via distance education if approved by State and accrediting agencies as long as an institution could clearly demonstrate instructor engagement with the student during each clock hour through a variety of means, which could include technology such as adaptive learning and artificial intelligence.

Two commenters indicated that the synchronous format described in the proposed definition is too limiting and would not be broad enough to allow students to engage in certain types of projects or assignments such as reviewing written or recorded lectures outside of regular classroom hours. Another commenter stated that the critical variable is not coordinated schedules or designated time, but a learning environment with diverse and engaging learning activities and faculty involvement.

Two commenters supported the inclusion of distance education into the Department's clock hour definition, arguing that distance learning technology has sufficiently advanced to permit institutions to conduct remotely synchronous instruction with students and to monitor the exact amount of time that students spend participating in these learning sessions. However, the commenters urged the Department to provide more clarification and greater flexibility under paragraph (3) of the clock hour definition which states that an institution must be capable of monitoring a student's attendance in 50 out of 60 minutes for each clock hour. Specifically, the commenters requested that the Department clarify that the new clock hour definition not require an institution to have live instructor involvement with a student each hour, so long as the institution can monitor a student's participation during 50 minutes of each hour and the institution can otherwise demonstrate academic engagement (per the Department's definition) by utilizing suitable technology as demonstrated to the appropriate State and accrediting agency. The commenters stressed that requiring “face-to-face” contact each hour or at least one live touch by an instructor per clock hour for synchronous or asynchronous instruction would ignore the direction that the Department's Proposed Rule is heading to expand recognition of the capabilities of technological advances to monitor student academic engagement and impose an undue hardship on students who need maximum scheduling flexibility in completing clock hours by means of distance education.

One commenter objected to the proposed clock hour definition and suggested the definition be reworded to account for students who may have relocated to a different time zone from their institution, and therefore might not be able to attend a class session in real time or interact with the instructor during the normal period of attendance. The commenter indicated that they currently attend a class in a different time zone and often have to watch recordings of the class and do not want these types of situations to be excluded from being counted towards a student's academic progress.

One commenter requested that the Department clarify if it indeed intended to limit distance education clock-hour eligibility to only synchronous learning experiences but instead grant more flexibility to correspondence courses. The commenter was concerned that, given the limitations on correspondence students and courses applied to correspondence education, institutions would prefer to designate courses as distance education rather than correspondence whenever appropriate.

One commenter urged the Department to extend the temporary flexibilities for online instruction for clock hour programs due to the current coronavirus crisis as outlined in the Department's guidance for COVID-19. The commenter noted that the Department's temporary flexibility allows schools to offer synchronous or asynchronous online clock hour programs as long as the

school can demonstrate student academic engagement through various online learning platforms and systems or based on school data or the instructor's own knowledge. The commenter indicated that extending these flexibilities would allow institutions to determine on a local basis how to transition back to on-ground education and clarify that clock hour schools are permitted to offer hybrid programs—partially on-ground and partially online—through this period to provide maximum flexibility to meet the health and safety needs of employees and students.

Several commenters specifically requested that the Department modify paragraph (1)(iv) of the proposed clock hour definition to include both attendance in a synchronous or asynchronous class for distance education coursework, while one commenter asked the Department to include “participation through asynchronous academic engagement” or similar language to the distance education eligibility criteria in paragraph (1)(iv) of the clock hour definition.

In addition, several commenters asked the Department to consider modifying paragraph (1)(iv) to read, “In distance education, 50 to 60 minutes in a 60-minute period of attendance in a `computer-assisted' class, lecture, or recitation where there is opportunity for direct interaction between the instructor and students”, while other commenters simply requested that the word “synchronous” be removed from paragraph (1)(iv). The commenters explained that removing the word synchronous from the definition would allow institutions who wish to offer clock hour programs synchronously or asynchronously, or a combination of both, the flexibility and opportunity to prepare the twenty-first century workforce in engaging and innovative ways.

Discussion:

We are persuaded by the comments that preventing institutions from offering instruction by asynchronous means is unnecessarily restrictive and counter to the purposes of this rulemaking. The emergence of the COVID-19 pandemic has illustrated the need for institutional and student flexibility with regard to the time and place that coursework is completed, and a number of licensing agencies are also creating new flexibilities for the use of asynchronous learning in clock hour programs. Asynchronous learning allows students to design their own learning schedules around the demands of work and family that often interfere with class activities offered only at prescribed times. This flexibility can also greatly benefit students with health concerns for whom participation is contingent upon treatment schedules and feeling well enough to perform required tasks. The individual pacing made possible by asynchronous learning allows for a more tailored educational experience that promotes mastery of subject matter over attendance in scheduled activities. Moreover, the availability of asynchronous learning allows for mixed model learning reflective of non-title IV eligible programming with theory learned asynchronously and specific practical tasks through synchronous instruction.

The Department does not wish to impede technological innovations at institutions that can help students overcome barriers to access and completion.

The existence of the “regular and substantive interaction” requirement related to clock hours offered through distance education and the requirement that clock hours meet the requirements of an institution's accrediting agency and State provide the safeguards that ensure that students have access to quality instruction and instructor support. Given these baseline requirements, it is not necessary to require students to interact with instructors synchronously to earn clock hours.

We also believe that commenters have made a strong case that, given current technology, clock hours completed asynchronously can be adequately supervised and monitored, provided the institution maintains the appropriate technological resources and internal controls. We disagree with commenters who indicated that learning technology is not yet capable of monitoring student engagement in this manner, especially since the Department has already reviewed and approved clock hour programs that used online learning platforms that are capable of the required monitoring.

The Department remains concerned about the possibility that clock hours offered asynchronously could be used as a means to complete unsupervised homework assignments rather than coursework that otherwise would have occurred in the classroom, which is prohibited under the Department's longstanding policy for clock-hour programs. Our position is that the requirement for supervision of a clock hour in an asynchronous learning environment is met when the institution is capable of documenting the specific form of academic engagement associated with the activity—for example, asynchronous participation in an interactive tutorial or webinar online or a learning activity involving adaptive learning or artificial intelligence—and the institution has technological resources and policies and procedures that are sufficient to monitor and document the time each student spends performing that activity. If either of these conditions are not met, an institution would not be permitted to include time spent on an online activity toward completion of a clock hour for purposes of the title IV, HEA programs.

We also agree with the commenters who argued that clock hours offered asynchronously should involve academic engagement, as defined elsewhere in these regulations, since that concept involves active participation in learning activities rather than passive consumption of knowledge or merely logging into an online system. An institution should establish, in accordance with its policies and those of its accrediting agency or State, what it considers to be academic engagement in a clock hour program in order to clearly demonstrate that students have spent the recorded time performing an activity.

Institutions are permitted to offer clock hour programs both through correspondence or distance education, and the Department declines to opine on which type of program is most appropriate or best suited to the needs of individual students. However, institutions offering clock hour programs using distance education continue to be subject to the general requirements in the definition of “distance education,” which requires regular and substantive interaction between students and instructors. In such programs, some, but not all, clock hours would need to involve substantive interaction between students and instructors.

Changes:

We have modified paragraph (1)(iv) of the “clock hour” definition to express that a clock hour includes a synchronous or asynchronous class, lecture, or recitation where there is an opportunity for direct interaction between instructors and students. We also added a new subordinate paragraph to include, as part of the definition of a clock hour, 50 to 60 minutes of active participation in an asynchronous learning activity involving academic engagement in which a student interacts with technology that can monitor and document the amount of time that the student participates in the activity.

Comments:

One commenter urged the Department to provide flexibility to institutions with distance education clock hour programs, whether taught in

synchronous or asynchronous learning environments, such that when monitoring clock hours, the institutions be given the flexibility to assign clock hours based upon the assignments provided to students as long as there is adequate communication between the instructor and students. The commenter mentioned that providing the flexibility to monitor that instructors are providing relevant assignments equal to the number of clock hours for which a student is enrolled would be adequate since the quality of the educational program has been reviewed and monitored by the school's accrediting agency.

Two commenters indicated that monitoring each student's time spent on academic engagement would be challenging given the cost and availability of current technology. One of those commenters indicated that it is currently impossible to properly monitor and track a student's attendance in 50 out of 60 minutes for each clock hour via distance education due to a lack of institutional means and technological uniformity. In addition, the commenter expressed a concern that the notion that technology has sufficiently advanced to permit institutions to conduct remotely synchronous, face-to-face instruction with students and to monitor the exact amount of time students participate in learning sessions is flawed because it is based on the premise that both the instructors and students can obtain, operate, and monitor the required devices needed to properly conduct distance education learning. The commenter asserted that the Department would be best served by dropping the new clock hour definition and instead, focusing on ensuring that an adequate amount of work is being completed rather than mandating a set amount of time be spent on coursework.

Discussion:

While we agree that it should be possible for a student to earn clock hours through participation in asynchronous online learning activities, we disagree that an institution can measure such clock hours without monitoring a student's actual participation in those activities. A clock hour is a period of 50 to 60 minutes in a 60-minute period spent receiving instruction or actively participating in a particular educational activity, and institutions are responsible for measuring the amount of time that students spend in such activities. The Department has never permitted institutions to award clock hours based on estimates of completed work and does not intend to do so for clock hour programs offered through distance education. We also disagree with the commenter that the technology needed to perform this monitoring does not exist or that it cannot be obtained by institutions and students. The Department has seen demonstrations of such technology by institutions that offer clock hour programs and was convinced that the technology was both viable and appropriate for use in monitoring clock hours completed asynchronously.

Changes:

None.

Comments:

One commenter asserted that the Department's proposed clock hour definition fell short of its stated goal in the NPRM “to remove barriers that institutions face when trying to create and implement new and innovative ways of providing education to students.” Specifically, the commenter suggested that the modern-day use of a calculation of seat time to measure student learning and progress is grounded on a false premise, especially considering today's online technologies, including artificial intelligence and adaptive learning tools. The commenter opined that since the definition of a “clock hour” is not defined in title IV, the Department should consider removing the definition of “clock hour” from § 600.2 and instead, rely on accrediting agencies, as the entities that set standards on academic quality, to provide academic oversight of institutions' policies relating to the measurement of student learning and progress.

Discussion:

We disagree that the use of clock hours to measure a student's progress for purposes of the title IV, HEA programs prevents institutions from using innovative technology or instructional methods. We believe that it is vital for institutions to be able to award and disburse title IV, HEA assistance using clock hours as a measurement of student progress because that form of measurement still aligns with many Federal and State licensure requirements for a variety of professions. This alignment ensures that institutions that are already required to monitor and document a student's successful completion of clock hours for other purposes can use that monitoring to demonstrate that the student has made progress for purposes of the title IV, HEA programs rather than requiring such institutions to perform a cumbersome and potentially burdensome conversion of clock hours to credit hours or some other equivalent measure.

Changes:

None.

Comments:

One commenter expressed concern that the clock hour definition does not define student seat time precisely enough. The commenter pronounced that a vague seat time requirement may cause undue challenges for an institution with rigorous accrediting agencies at the regional and/or professional level.

Discussion:

The Department does not establish academic requirements for educational programs, including clock hour programs. Under the Department of Education Organization Act, such requirements remain within the purview of accrediting agencies and States, which are free to set requirements they feel appropriate for what is considered successful completion of a clock hour in each program.

8

This longstanding approach to the oversight of academic requirements recognizes the autonomy of postsecondary institutions and the unique qualifications of their accrediting agencies and States to respond to issues of academic quality.

8

See 20 U.S.C. 3403(b).

Changes:

None.

Comments:

One commenter urged the Department to maintain the requirements listed under paragraph (3) requiring programs to meet all clock hour limitations or criteria established by school accrediting agencies, States, and applicable licensure bodies. The commenter also expressed support for limiting clock hours via distance education to synchronous programs in the final rule because monitoring a student's completion of a clock hour in an asynchronous program would be virtually impossible.

The commenter stated that monitoring asynchronous learning would diverge too much from the proposed clock hour definition and the Department would most likely be unable to assess the minimum technology needed for institutions to adequately monitor asynchronous distance education learning.

Discussion:

We do not believe that it would be impossible for an institution to maintain the appropriate technology and procedures to monitor and document clock hours earned based on completing asynchronous educational activities. However, we agree that it is important to ensure that institutions comply with any requirements set by accrediting agencies or State licensing or approval agencies regarding clock hours and intend to retain that component of the clock hour definition.

Changes:

None.

Definition of Credit Hour (§ 600.2)

Comments:

Numerous commenters expressed their overall support for the proposed changes to the definition of a

credit hour, with several of those commenters specifically asking that the Department make no changes to the consensus language agreed to by negotiators. Some of this support was qualified to varying degrees, ranging from observations that the credit hour is a less than ideal measure of student progress to a request on the part of two commenters concerned about the rule's enforceability that the Department restore the requirements in §§ 602.24(f) and 603.24(c) (84 FR 58931) requiring that accreditors and State agencies respectively, conduct review and evaluation of the reliability and accuracy of the institution's assignment of credit hours.

One commenter expressed opposition to the revised definition of “credit hour” based on concerns that changing the definition of “credit hour” to focus on student learning time may pose new risks to students and their privacy. The commenter offered that if recording of individual learning time becomes desirable initially for credit hour validation, it may become desirable for individual student measurement, and that the potential consequences of this should be available for public review.

Another commenter asserted that the Department should maintain the definition of “credit hour” in the NPRM but that the Department made proposals to change the definition without any evidentiary basis or support, rendering them legally insufficient under the APA. The commenter asserted that by failing to present evidence during the negotiated rulemaking that would justify a change, and by failing to suggest in the NPRM that the Department has support to justify those original proposals now, the Department has no choice but to maintain the consensus definitions included in the NPRM.

Concerned that the proposed definition of “credit hour” does not adequately account for transfer credits, one commenter offered revisions to the amendatory text in the NPRM that would change the characterization of a credit hour as, “an amount of student work” to “work by a student with average, but appropriate, preparation . . .” and include recognition and consideration of the importance and widespread usage of credit transfer among institutions. The commenter also suggested that the Department address a perceived disparity between workload expectations of students in on-campus courses versus those offered through distance education. The commenter proposed to stipulate the equivalent amount of work as required in paragraph (1)(i) of the definition of “credit hour” for other academic activities as established by the institution be consistent, by institution and course, between requirements for on-campus and on-line monitoring of student work.

Discussion:

We appreciate the general support for our proposal to broaden the definition of “credit hour” in a way that focuses on student learning rather than seat time and is flexible enough to account for innovations in the delivery models used by institutions. Even among those commenters whose support was tempered with reservations over the proposed definition of a “credit hour” either adhering too closely to the current definition or broadening it too much, there was strong agreement that no changes should be made to the consensus language in the NPRM.

In response to those commenters who expressed support for the proposed changes to the definition of “credit hour” but asked that the Department restore the requirements in current §§ 602.24(f) and 603.24(c), as previously explained in the preamble to the November 1, 2019 final rule on State Authorization and Accreditation (84 FR 58875), we continue to believe the agency review requirements are unnecessarily prescriptive and administratively burdensome without significantly improving accountability or protection for students or taxpayers. However, we note that the “credit hour” definition in both current and proposed § 600.2 requires that the amount of student work determined by an institution to comprise a credit hour be approved by the institution's accrediting agency or State approval agency. Moreover, nothing precludes an accrediting agency or State authorizing agency from examining or questioning an institution's credit hour policies either as part of a routine evaluation of that institution's academic programs or as the result of specific concerns.

We disagree with the commenter who opposed the changes to the definition of “credit hour” proposed in the NPRM on the basis that an increased focus on student learning time may pose new risks to students and their privacy. The definition of “credit hour” as proposed in the NPRM does not place an increased emphasis on learning time. Time-based requirements relative to classroom instruction and other academic activities included in the proposed definition of “credit hour” are those found in the current definition. Additional language in the proposed definition clarifies that, in determining the amount of work associated with a credit hour, an institution may consider a variety of delivery methods, measurements of student work, academic calendars, disciplines, and degree levels. This new language actually deemphasizes the strict measure of learning time.

Although the Department takes seriously any identified risk to student privacy, the commenter was not specific as to what those risks are. Finally, with respect to the potential consequences of these proposed rules being available for public review, we believe the comment period following publication of the NPRM in the

Federal Register

provided such an opportunity.

We further disagree with the commenter who asserted that the Department made proposals to change the definition of “credit hour” without any evidentiary basis or support, rendering them legally insufficient under the APA, or that it failed to present evidence during the negotiated rulemaking that would justify changing the definition of “credit hour.” In preparation for the subcommittee meetings on distance learning and innovation, the Department produced several position papers outlining its reasons and justifications for all proposed rule changes under consideration by that subcommittee, including those related to the definition of a credit hour. The proposed definition was discussed at length in the subcommittee and again at the negotiating table. A detailed, written discussion of the Department's reasons for proposing these changes is contained in the April 2, 2020 NPRM on pages 18646 and 18647. However, we appreciate the commenter's overall support for the consensus language.

In response to the commenter who expressed concern that the proposed definition of “credit hour” does not account for transfer hours, we note that credit hours, as they pertain to the title IV, HEA programs, are a measure of student workload necessary to determine enrollment status and award amounts. Credit hours that an institution accepts on transfer have no effect on making these determinations and are, therefore, not integral to the definition of a credit hour for title IV purposes. The commenter identified several problems with respect to transfer hours, including the disparity among institutions in how transfer hours are considered and accepted.

While we agree on the need to address challenges regarding transfer of credit, we do not believe that this definition is the appropriate place to do so or that the revisions to the proposed definition of “credit hour” suggested by the commenter would change the way transfer hours are treated by

institutions. With regard to any disparities that may exist between what is expected of students taking classes offered through distance education and what is expected of students enrolled in classes offered on campus, we do not agree with the commenter that these can be addressed by revising the proposed definition of “credit hour.” Institutions themselves set the academic standards for their programs. The definition of “credit hour” merely establishes a reasonable measure of student workload. We believe that the amendatory text, agreed to by negotiators, permitting an institution, in determining the amount of work associated with a credit hour, to take into account a variety of delivery methods, measurements of student work, academic calendars, disciplines, and degree levels, accommodates a variety of modalities, including distance education.

Changes:

None.

Definition of Distance Education

Comments:

Numerous commenters expressed their support for the Department's proposed definition of “distance education.” Many commenters thanked the Department for providing greater clarity and specificity to the definition. One commenter highlighted several recent audits by the Department's Office of Inspector General (OIG) focusing on the requirements for regular and substantive interaction and pointed to the large amount of proposed liabilities in those audits as a reason that the definition of “distance education” needed to be clarified. Another commenter asserted that the changes modernize the definition and permits more flexibility for postsecondary institutions to offer educational programs.

Several commenters were appreciative of the Department's efforts to eliminate references to outdated technology such as CD-ROMs. Other commenters indicated that the definition holds institutions accountable for providing students in distance education programs with communication and engagement with qualified instructors on a predictable and regular basis.

Many commenters supported the addition of the concept of “qualified instructors” who meet the instructional requirements of an institution's accrediting agency. One commenter stated that the proposed definition would provide institutions with a single, clear definition of “instructor” for financial aid purposes, that could help prevent confusion during audits about which staff members can be classified as instructors. One commenter also expressed support for the Department's use of the plural “instructors” rather than “the instructor” because it would enable more people to teach as a team and provide more individualized attention to students.

Several commenters supported the Department's proposed requirements for substantive interaction, indicating that the definition supports a variety of activities needed for teaching and learning. One commenter indicated that defining and clarifying what constitutes “substantive interaction” between students and faculty would give institutions the ability to innovate without fear of the loss of Federal student aid eligibility. Another commenter indicated that the requirements for substantive interaction are appropriately adaptable because they allow accrediting agencies to approve different types of instructional activities. One other commenter was supportive of the consensus language relating to substantive interactions, noting that while the Department's original proposal had defined substantive interaction as an interaction that simply related to course material under discussion, negotiators opposed this language because it did not specifically address teaching and learning in the way that the consensus language does.

Several commenters also supported the Department's requirements for regular interaction. One commenter indicated that the flexibility of the definition was important given variability across a wide range of program types and topics and helped limit administrative burden. Another commenter supported the ability for institutions to determine the number of substantive interactions that are appropriate based on the length and amount of content associated with a course. One commenter expressed strong support for requiring both predictable opportunities for interaction and the prompt and proactive monitoring of student engagement, indicating that the requirements would result in more affordable and accessible pathways for students while ensuring high-quality instruction.

Discussion:

The Department thanks the commenters for their support.

Changes:

None.

Comments:

Many commenters urged the Department to maintain the regulatory language agreed upon in consensus with non-Federal negotiators for regular and substantive interaction and the requirements for instructors in distance education programs. Several commenters pointed out that the consensus agreement for the proposed definition of “distance education” reflected a thoroughly discussed compromise among negotiators.

Several commenters contended that it is imperative to clearly distinguish between distance education and correspondence courses and ensure that quality standards exist for distance education programs, especially given the history of abuses related to correspondence courses. The commenters asserted that diluting the proposed definition could result in online programs becoming eligible for Federal student aid even when the programs do not offer the same quality of education or degree of connection between students and qualified instructors. One of those commenters urged the Department not to revert to its original proposal to allow accrediting agencies alone to articulate requirements for regular and substantive interaction and instructors with minimal Federal guidelines. One commenter asserted that the Department's original proposals for changing the definition, later rejected in the consensus language, would have undermined the requirements for regular and substantive interaction and for the qualifications for an instructor and urged the Department not to return to those proposals.

Other commenters pointed out that the requirements for regular and substantive interaction exist in law because of past abuses in correspondence programs, particularly of veterans seeking to use educational benefits. One of these commenters noted that after passage of the 1944 Servicemen's Readjustment Act of 1944 (commonly known as the “GI Bill”) hundreds of thousands of servicemen used their education benefits under that law to enroll in correspondence courses, but only approximately 10.7 percent of those veterans completed their programs. That commenter also pointed out that Congress acted in the early 1990s to address similar types of abuses in correspondence courses related to the title IV, HEA programs. Another commenter noted that the OIG has repeatedly raised concerns about distance education and has characterized it as an area that poses significant risk to the integrity of the FSA programs.

One commenter referred to research that shows that Latino students enrolled in online education have lower academic and attainment outcomes than in face-to-face courses and that interviews with such students highlight the absence of a meaningful student-

instructor relationship as a contributing factor to those poor outcomes. Another commenter referenced research that suggests faculty-student interaction plays a key role in a quality online education and that underprepared and disadvantaged students tend to underperform and, on average, experience poor outcomes in such programs. That commenter also referenced research that suggests online students desire greater interaction with their instructors and that, in general, online education has not improved affordability, frequently costs more, and does not produce a positive return on investment. One commenter asserted that if the requirement for regular and substantive interaction is weakened, there is a risk that inequities will increase between those students who have access to substantive interaction with instructors and those who do not. That commenter expressed that this is an even more critical issue now that institutions are moving online because of the COVID-19 emergency.

Discussion:

We agree that it is important for the regulations to clearly distinguish between the definitions of “distance education” and “correspondence courses” and believe that the proposed definitions accomplish that goal. Whereas the definition of a correspondence course describes interaction between students and instructors in such the course as “limited . . . not regular and substantive, and . . . primarily initiated by the student,” the definition of distance education requires regular and substantive interaction between students and instructors and clearly explains the requirements for each component of that definition. We also agree that it is important to adhere to the agreed-upon language of the members of the subcommittee and full committee, who were able to reach agreement on the definition of the term despite strong initial differences of opinion on the matter. We agree with the commenters who referenced the importance of regular and substantive interaction between students and instructors, particularly for students who are underprepared, and believe that the requirements for such interaction expressed in the definition strike the appropriate balance between assuring interaction with qualified instructors and allowing institutions the flexibility to offer programs using innovative, student-oriented pedagogical techniques.

Changes:

None.

Comments:

Several commenters opined on whether the Department should incorporate the concept of an “instructional team” into the definition of “distance education.”

One of these commenters described the use of instructional teams as a practice that occurs in on-campus settings across various fields of study and that provides exceptional opportunity to students by allowing them to interact with several experts in a given course. Another commenter argued that explicitly addressing the concept of instructional teams in the definition would acknowledge the reality that distance education is an instructional team endeavor that does not rely upon arbitrary distinctions between an instructor and someone involved in facilitating the delivery of course content who is not considered an instructor.

One commenter argued that team-based instructional models could be complicated if substantive interactions could only be provided by individuals that met an accrediting agency's requirements for instruction and noted that some types of interactions described under paragraph (3) of the definition, including assessing or providing feedback on a student's coursework, could be provided by assessment specialists who do not meet the definition's requirements for a qualified instructor.

Conversely, one commenter objected to the Department's proposal to use the term “instructors” rather than “the instructor,” arguing that doing so would allow quasi-professionals to teach more advanced subject matter as part of a team. The commenter asserted that this situation could result in such instructors only tangentially monitoring student discussion rather than substantively engaging with students.

Discussion:

The Department does not object to the use of instructional teams, regardless of the modality of the coursework. Indeed, we support innovative educational models that provide additional support, both academic and otherwise, to support student success. However, we believe that the current regulatory language accommodates the use of instructional teams and no change is necessary in order further encourage their use.

Regardless of the composition of an instructional team, the Department expects that such a team would include qualified individuals with subject matter expertise who are expected to instruct, guide, or otherwise respond to questions from students about the subject matter of a course or competency. Such individuals, assuming they meet accrediting agency requirements for instruction, are the staff members whose substantive interaction with students can fulfill the requirements of the “distance education” definition for regular and substantive interaction between students and instructors. Note that accrediting agencies can choose to designate individuals as instructors who do not meet the traditional criteria for faculty, and many already do in instances, for example, where workforce experience may be more important to teaching and learning than an advanced degree. Accreditors are also permitted to designate an individual as an “instructor” meeting its requirements only in specific situations, for example, where a less-experienced individual is teaching in a team setting with an experienced instructor of record having responsibility for the course in general. Given this degree of flexibility, we believe that the regulation as written provides ample opportunity for distance education to occur with the use of instructional teams, but only when such use conforms with the requirements of an instruction's accrediting agency.

Changes:

None

Comments:

Several commenters expressed concern with the Department's proposal to replace the list of technologies in the definition of “distance education” with the phrase “other media.”

Two commenters indicated that the word “media” was not specific enough to limit the types of modalities that could be used in distance education. One of those commenters recommended that the Department add the phrase “and other types of media” after listing each type of technology. The other commenter recommended that the Department continue to add new media types to the definition rather than removing the existing types that were listed.

One commenter suggested that the Department eliminate the list of technologies that could be used to offer a program through distance education unless we plan to update the appropriate formats on a regular basis (for example, annually).

Another commenter expressed concern that replacing references to types of media with the phrase “other media” could cause institutional officials to interpret the phrase as the use of one type of media.

Discussion:

We appreciate the commenters' suggestions, but we do not plan to update the list of acceptable technologies at this time. The HEA currently prescribes the types of technologies that may be used for distance education, and in this rulemaking the Department is not making changes to the statutory

requirement, but is instead simplifying this list in the regulations by referring to “other media” rather than including all of the types of media that may be used to deliver distance education.

Changes:

None.

Comments:

One commenter suggested that the Department define “instruction” rather than “instructor” and use the definition of the former to inform requirements for the latter.

Discussion:

The Department chose to clarify the requirements for an instructor for purposes of the definition of “distance education” because the term is specifically used in statute with reference to distance education. Moreover, we believe that it is beyond our purview to define the term “instruction” given its broad application in postsecondary education and the restrictions on the Department's oversight of academic quality in the Department of Education Organization Act.

Changes:

None.

Comments:

One commenter expressed concern about the variability between accrediting agencies regarding their requirements for an instructor in the context of the definition of “distance education.” The commenter stated that each accrediting agency should have a strong definition of a quality instructor that includes requirements for qualifications to teach in the relevant competencies. Two commenters also recommended that in cases where students have multiple instructors, the students should be informed of which instructor is the instructor of record.

Discussion:

We believe that accrediting agencies are the appropriate arbiters of academic quality for postsecondary education, including regarding the appropriate requirements for instructors. The Department is prohibited from creating regulations or other requirements regarding the academic quality of educational programs under the Department of Education Organization Act. Furthermore, while it is true that there may be variation among accrediting agencies regarding requirements for instructors, we believe this is appropriate given the different types of qualifications that may be needed depending on the types of programs and degree levels offered.

Changes:

None.

Comments:

Several commenters sought clarification regarding the Department's requirements for “regular interaction.”

One commenter indicated that interactions in asynchronous courses may not be predictable and asked the Department to clarify by providing a specific length of time that it considered to be “regular” for purposes of this definition.

Another commenter asked how institutions would monitor a student's engagement in distance education, particularly when an interaction occurs during a videoconference where the instructor is working to develop the student's understanding of a particular topic while also attempting to monitor the student's engagement.

One commenter expressed concern that the regulations only require the opportunity for interactions with instructors when needed. The commenter indicated that this lack of mandatory proactive instruction, when combined with a lack of emphasis on faculty involvement, could lead to confusion about the distinction between distance education and correspondence courses. The commenter recommended that the Department delete the words “the opportunity” from paragraph (5)(i) of the definition and delete “when needed” from paragraph (5)(ii) in order to require proactive substantive interaction for every student.

Several commenters noted that the regulations describing “regular interaction” included a requirement for the interaction to be “regular,” which the commenters felt was redundant. Three of those commenters recommended that the Department replace the phrase “regular and predictable basis” with the phrase “scheduled and predictable basis.”

Discussion:

Given the variety of distance education programs, coursework, instructional modalities, and course schedules, we do not believe it is practical to offer a specific timeframe for regular interaction. The Distance Learning and Innovation subcommittee strongly disagreed with that approach when it was presented, arguing that establishing such a timeframe would either be overly prescriptive or excessively complex. Similarly, an institution cannot be expected to ensure perfect attendance by students at each opportunity for interaction with an instructor, which is why the Department, the subcommittee, and the negotiating committee agreed to frame the requirement as an “opportunity” for interaction rather than a required interaction. This approach has the added benefit of allowing institutions to demonstrate compliance with the requirements at the program design level without documenting each and every interaction between students and instructors.

The requirements for regular interaction include monitoring a student's “academic engagement and success” with respect to a course or competency. This requirement is not intended to mandate that instructors personally monitor each student's engagement throughout each class session while also instructing, facilitating discussion, or responding to questions from students. Instead, the requirement is intended to ensure that instructors are generally monitoring whether a student is engaged and successful throughout a given course or competency and takes appropriate action as needed. Such monitoring could include evaluating a student's level of participation in synchronous class sessions, but it could also involve monitoring the student's activity on course websites or materials; considering the quality of the student's assignments or responses to questions about course materials; evaluating the level of the student's understanding of course materials during conversations with instructors or performance on exams; or other forms of monitoring the student's engagement and success in the course or competency.

We agree with the commenters that the word “scheduled” is more descriptive and provides greater clarity than the word “regular” for purposes of describing “regular interaction.” Furthermore, the Department believes that the word “scheduled” more clearly reflects the intent of the Distance Learning and Innovation subcommittee and the full negotiating committee to ensure that students are provided scheduled opportunities to interact with instructors for which the students can prepare in advance.

Changes:

We have replaced the phrase “predictable and regular basis” with the phrase “predictable and scheduled basis” in paragraph (5)(i) of the definition.

Comments:

One commenter explained that there are two types of distance education models that higher education has developed—synchronous and asynchronous—and that the asynchronous model better reflects the realities of working adults, differing levels of preparation, and the importance of assessment. The commenter pointed out that many new students in higher education are “non-traditional” and include a large number of veterans and students with families. The commenter asserted that these students have schedules that they cannot control and are better served by asynchronous courses that support their needs for flexibility, while the institution ensures that each student is evaluated based on the student's demonstration of mastery of the competency or course. The commenter

recommended that the requirements for regular interaction point to interactions that are appropriate to the course modality and consistent with student success.

Discussion:

We agree with the commenter that distance education may, in many cases, have the capability to address the needs of non-traditional students better than traditional classroom courses. However, we disagree that the regulatory definition needs to include a reference to the appropriateness of interactions with respect to course modality and student success for institutions to offer programs that are sufficiently flexible. Though the definition of “distance education” establishes certain requirements for interaction in online programs, the Department defers to institutions and their accrediting agencies regarding whether a program's design involves interactions that are appropriate and tailored to the needs of students.

Changes:

None.

Comments:

A few commenters asked questions about the relationship between the Department's final regulations and the COVID-19 pandemic.

One commenter asked the Department how its proposed definition of distance education would prepare institutions for future pandemics and whether institutions should be required to implement distance education training programs so that they are prepared to shift to an online modality if and when a pandemic prevents in-person instruction once again. The commenter asserted that new options for learning modalities would not prompt an increase in the number of students enrolling in distance education courses and asked how the Department's proposal would reduce barriers to access for students given those trends.

Another commenter pointed out that the Department's recent guidance for distance education related to the COVID-19 pandemic were inconsistent with the regulatory requirements for distance education in the proposed rule.

Discussion:

Many institutions with limited distance education offerings at the time of the initial COVID-19 outbreak were unprepared for the impacts of the pandemic and did not have adequate resources or the expertise to quickly shift to an online learning modality. Though many institutions were able to shift to an entirely new modality, many were still faced with a complicated and confusing regulatory framework for distance education that they had never encountered before. The Department's hope is that clarifying and expanding the definition of “distance education” will offer a degree of certainty to institutions both familiar and unfamiliar with online learning and will make it easier for institutions to shift to an online modality in the event of a pandemic in the future.

The Department's recent COVID-19 distance education guidance for institutions related to COVID-19 was intended to be temporary and was necessary to address the urgent need to shift instructional operations online very quickly. The Department has established a specific timeframe for that guidance and will expect institutions to again comply with regulatory and statutory requirements when the waivers and flexibility related to COVID-19 expire.

Changes:

None.

Comments:

Many commenters asked questions about the Department's requirements for “substantive interaction” under the definition of “distance education.”

A few commenters asked the Department to clarify whether substantive interaction was required to occur regularly at the “instructor level” or the “course-competency level.” Two of those commenters expressed concern that if the definition were applied at the instructor level and not the course-competency level, it could exclude some aspects of an “unbundled” instructional model. One commenter offered the example of assessment experts whose skills and expertise are tailored toward developing and scoring assessment, as well as providing students with feedback, but who might not be considered to be “faculty.” That commenter argued that the Department should indicate that its intent was for substantive interaction to occur at the course/competency level.

Several commenters asked the Department to explain the interaction between the regulations requiring at least two types of substantive interactions and the requirements for such interactions to be “regular.” One commenter asked whether both types of substantive interaction were required throughout a semester, or whether an institution could engage in one or the other activities at any time to meet the requirements. A separate commenter asked whether the two forms of substantive interaction needed to be alternated on a regular basis or whether both forms of interaction were required in the same class session. That commenter recommended that the Department either clarify this point or strike the requirement for more than one form of substantive interaction, asserting that it could cause implementation challenges. Another commenter requested that the Department remove the requirement for at least two types of substantive interaction because it was unclear how often each type of interaction needed to occur and such ambiguity could cause considerable confusion for institutions attempting to implement the requirements.

One commenter asked how instructors would calculate the time that they spend on substantive interaction when one of the categories of such interaction includes responding to questions about the content of a class.

Discussion:

The Department's requirements for regular and substantive interaction between instructors and students occurs at the course or competency level. The Department's intent with this definition is to ensure that, for a given unit of study (for example, a class such as English 101 or a competency such as the ability to perform statistical analysis) a student has ample opportunity to substantively interact with an instructor and the instructor (or instructors) monitor the student's engagement and performance, and provide scheduled opportunities for interaction with the student as needed on the basis of that monitoring. Additionally, the regulations must apply at the course or competency level because they are designed to distinguish distance education from correspondence courses for purposes of exempting distance education from the limitations on the percentage of correspondence courses that an institution may offer. Applying the regulatory requirements for distance education at the instructional unit level ensures that any online course or competency that is misclassified as distance education can be included in the calculation of the percentage of correspondence courses that the institution offers for purposes of the institutional eligibility requirements under 34 CFR 600.7.

The Department also applies the requirement for a substantive interaction to include at least two types of activities listed in the definition at the course or competency level. The definition of “distance education” lists several different types of interaction that can fulfill the requirements for “substantive interaction,” including direct instruction, assessment, responding to questions about the course materials, facilitating a group discussion regarding the course content, or other instructional activities approved by the institution's accrediting agency. The definition requires an institution to perform at least two of those activities, and since we apply the regulation at the course or competency

level, we also require an institution to perform at least two of those activities over the period of time that the student completes the course or competency. We believe that requiring a specific timeframe, sequence, or frequency that the activities need to occur within that timeframe would be impractical and would extend beyond our purview under the Department of Education Organization Act.

The Department does not expect an institution to measure or document the exact amount of time that it or its students spend on any particular type of substantive interaction. An institution is expected to maintain academic policies or procedures that create expectations for faculty to substantively interact with students on a predictable and scheduled basis and to monitor each student's engagement and success and follow up with the student as needed.

Changes:

None.

Comments:

One commenter recommended that the Department add language requiring that institutions using distance education ensure the accessibility of the learning materials and remain compliant with Section 508 of the Rehabilitation Act. The commenter argued that technology can be a limiting factor for individuals with disabilities if the systems used are not accessible.

The commenter also asked the Department to add a requirement for instructors to be “flexible and work with the student to determine the most appropriate communication mode to maximize the student's ability to participate.” The commenter indicated that because some students struggled with communication technology, instructors should customize their online programs to ensure that students are being evaluated for their knowledge of content rather than their ability to access technology.

Discussion:

The Department does not believe it is appropriate to regulate the Rehabilitation Act using the definition of “distance education,” which is derived from the HEA. That said, we strongly support the intent of the Rehabilitation Act and expect every institution with a distance education program to adhere to that law's statutory and regulatory requirements.

Changes:

None.

Comments:

Many commenters requested that the Department replace the “and” between paragraphs (5)(i) and (ii) of the definition with “or” in order to allow an institution to fulfill the requirement by taking either of the actions in paragraph (5)—providing the opportunity for substantive interactions with the student on a predictable and regular basis or monitoring the student's academic engagement and success and ensuring that an instructor is responsible for promptly and proactively engaging with the student—as opposed to requiring the institution to take both of those actions. One of these commenters argued that the proposed regulations would require institutions to adhere to a time-bound model that may not be appropriate for the institution's instructional modality or its students. Two other commenters indicated that the intent of the Distance Learning and Innovation subcommittee was to allow institutions to choose the type of “regular” interaction that best suited the academic program and recognized that some institutions have sophisticated technologies that monitor student engagement and success and alert instructors when students are not engaged or are struggling with material. These and other commenters also cautioned that requiring both components of the definition could result in a requirement that institutions adhere to a strict, time-bound schedule, which is counter to the format in many competency-based education programs. Many commenters also argued that many institutions lack the technology or resources needed to monitor a student's engagement and success. Another commenter indicated that the “and” would limit the variety of instructional approaches that could be available to institutions if one or the other action fulfilled the requirement. One commenter also noted that reverting to “or” between those paragraphs would recognize the importance of a team approach to instruction and co-curricular activities. Several commenters argued that reverting to “or” would set expectations for distance education, including monitoring each student's engagement, beyond what is expected or required for on-campus instruction. Several commenters also asserted that the change to “and” could push institutions to adopt learning analytics tools to track student progress, which could increase the cost of educating students and introduce privacy or other ethical concerns. One commenter pointed out that requiring institutions to implement both components of the requirements for regular interaction could prevent them from adjusting quickly to market demands and emerging technology. Finally, one commenter pointed out that the Department's OIG would rely upon the new regulatory definition of “distance education” when assessing an institution's compliance, suggesting that additional flexibility in the definition was therefore preferable.

Discussion:

As one commenter noted, the Distance Learning and Innovation subcommittee's recommendation was to allow an institution to fulfill the requirement for regular interaction by either maintaining predictable and scheduled opportunities for interaction or by maintaining a system for evaluating a student's engagement and progress and ensuring that an instructor followed up when appropriate. The subcommittee's intent was to allow institutions with self-paced programs to use other techniques other than scheduling planned interactions, which in the past had led to perfunctory mandatory phone calls or class sessions that did not provide great benefit to students.

Despite the subcommittee's concerns about requiring predictable opportunities for interaction, the full negotiating committee decided that it was important for both conditions to be met. The committee believed that the proposed definition, requiring both predictable interactions and student monitoring, offered sufficient flexibility regarding the number and frequency of scheduled interactions based upon the length and intensity of the student's coursework. In a self-paced course or competency in which a student approaches the coursework at his or her own pace, the institution is not required to schedule, for example, weekly opportunities for interaction. Instead, the institution may decide that the appropriate timeframe for scheduled opportunities for interactions is bi-weekly or monthly, or a different frequency. Furthermore, by not requiring mandated interactions, the definition does not impose a bureaucratic requirement for a scheduled course session, but instead simply ensures that students are aware that there will be planned occasions that they will be able to interact with an instructor about course content.

Similar concerns were also raised by commenters about requiring more traditional class-based online programs to maintain a system for monitoring student engagement and interacting with the students on that basis. We disagree with several commenters that institutions would need to purchase expensive software to track and monitor each student's online activities to determine whether the student was sufficiently engaged. While such software would meet the requirement if it were part of a system for monitoring and interacting with students when the need arose, it is not a required element for regular and substantive interaction.

The Department's expectation is that instructors take a proactive approach to determining when students need assistance and then offering that assistance, and this could be done either using sophisticated systems for monitoring student activity or more traditional person-to-person evaluation or through the use of tests and quizzes. The required “monitoring” could consist of evaluating each student's performance in regular online class sessions or in regular assignments that have been turned in. This type of monitoring is common to nearly all postsecondary programs and has been performed since before the internet existed.

Given all of these factors and the level of importance accorded by the negotiating committee to the use of “and” between paragraphs (5)(i) and (ii) of the definition, we decline to revert to the word “or” between those paragraphs.

Changes:

None.

Comments:

One commenter proposed that the Department should provide an outline of the new definition of “distance education” to offer clarity to government officials and citizens about the changes to the definition.

Discussion:

We thank the commenter for this suggestion and agree that an outline could make the changes clearer. We plan to publish a clear description of each of the changes to the definition of “distance education” in the FSA Handbook after the changes become effective.

Changes:

None.

Comments:

Several commenters asked the Department to clarify whether interactions that were initiated by a student would meet the requirements for regular and substantive interaction between students and instructors. One of those commenters sought clarification regarding whether the Department intends to require evidence of instructor-initiated interaction, student-initiated interaction, or both.

Discussion:

The Department does not consider substantive interactions initiated by students to meet the requirements for regular interaction in the definition of “distance education.” An institution meets the requirement for regular interaction between students and instructors by, in part, providing the opportunity for substantive interactions with the student on a scheduled and predictable basis commensurate with the length of time and the amount of content in the course or competency. This requirement could be met if instructors made themselves available at a specific scheduled time and through a specific modality (

e.g.,

an online chat or videoconference) for students to interact about the course material, regardless of whether the students chose to make use of this opportunity or interact with the instructor at the scheduled time. However, if an institution does not offer such opportunities for interaction on a regular and scheduled basis in an online program and instead relies solely upon students to initiate interactions with instructors, it would not meet the requirements for regular and substantive interaction between students and instructors and the online program would be considered to be taught using correspondence courses.

Changes:

None.

Comments:

Several commenters asked how the Department would oversee various aspects of the definition of distance education. One commenter asked how the Department would assess whether an institution's instructional activities were approved by the institution's or program's accrediting agency in audits or program reviews. The commenter also asked whether accrediting agencies would be required to create a list of approved instructional activities or whether the Department would allow agencies to have more ambiguous standards that are applied on a case-by-case basis, which could result in most or all institutions meeting the requirements. Another commenter asked what oversight mechanisms the Department would use to verify the amount of substantive interaction reported by institutions.

Discussion:

The Department's oversight of the requirements for regular and substantive interaction between students and instructors will focus on five critical factors that differentiate distance education from correspondence courses. The Department will seek to determine whether—

• The institution's online instruction is delivered through an appropriate form of media;

• The instructors with whom students regularly and substantively interact meet the requirements of the institution's accrediting agency for instruction in the subject matter;

• Instructors engage in at least two forms of substantive interaction meeting the regulatory requirements for the course or competency;

• The institution has established scheduled and predictable opportunities for substantive interaction between students and instructors and create expectations for instructors to monitor each student's engagement and substantively engage with students on the basis of that monitoring; and

• Instructors are responsive to students' requests for instructional support.

The Department will evaluate whether an instructor meets an accrediting agency's requirements by reviewing the agency's written standards and any communication between the agency and the institution regarding the agency's requirements or whether the instructors in question met such requirements. If the Department is unable to determine whether the instructor meets the agency's requirements by reviewing such written materials, it may contact the agency to seek a determination on the matter.

The Department does not require an institution to monitor or document every interaction between an instructor and a student to demonstrate that it has fulfilled the requirements for regular and substantive interaction. However, we encourage institutions to consider whether they have adequate means of monitoring online programs to ensure that they continue to meet all the conditions of the definition. In overseeing the requirements for regular and substantive interaction with instructors, the Department will determine whether an institution has established sufficient internal controls to demonstrate that it has established (1) appropriate academic policies and procedures for its instructors to implement these provisions; and (2) a system for monitoring or periodically evaluating its online programs to ensure that its instructors continue to observe such policies over time.

Comments:

One commenter, arguing that direct instruction was at the core of higher education, recommended that the Department require “substantive interaction” to include direct instruction in addition to two other elements.

Discussion:

The required elements for substantive interaction were determined in consensus with the negotiating committee, and the Department does not believe it would be appropriate to diverge from that agreement to narrow the types of program offerings that would meet the Department's definition of “distance education.” Furthermore, we do not believe it is advisable to require regular direct instruction in all distance education programs given the proliferation of promising new educational models that do not rely on regularly scheduled instructional sessions. The Department wishes to remind the commenter that in the case of in-person classroom-based instruction, most schools are not required to take attendance. It the case of credit hour programs, it is the job of

the institution to provide the opportunity and it is the job of the student to take it.

Changes:

None.

Comments:

One commenter expressed dissatisfaction with the Department's proposed definitions of “correspondence course” and “distance education,” stating that the requirement for “constant communication” initiated by the instructor in distance education was unfair and would hinder students who need flexibility with respect to the time and place that they interact with their instructors.

Discussion:

The proposed definition of “distance education” does not require constant communication between students and instructors and in fact only requires scheduled opportunities for interaction with qualified instructors and a system for monitoring student engagement and success. We believe these requirements are reasonable and will permit substantial flexibility for institutions to create new educational models that place the student, rather than the instructor or the institution, at the center of the learning exercise.

Changes:

None.

Comments:

Several commenters emphasized the importance of improving the quality of information and oversight related to distance education.

One commenter said that while some information exists about distance education in the Integrated Postsecondary Education Data System (IPEDS), the data are not current and include only the number of students enrolled in distance education courses and completing distance education programs. The commenter also indicated that the National Center for Education Statistics (NCES) sample surveys collect some information about engagement with distance education, but because those surveys are based on samples and are not conducted annually, their usefulness in answering policy and research questions is limited. The commenter argued that the Department should improve timely data collection about distance education given the significant number of students who enroll in that format, the uncertainty about future reliance on distance education options, and the importance of evaluating regulations related to distance education. The commenter suggested adding a field for the distance education status of enrolled title IV recipients in the National Student Loan Data System (NSLDS). Another commenter suggested that the Department require institutions to establish a new location with the Department for exclusively online students. That commenter also reiterated a proposal that had been proposed by one of the non-Federal negotiators during negotiated rulemaking: That the Department require institutions to report, for students who are enrolled in programs in which at least one course can be completed online, whether each recipient of title IV, HEA assistance is enrolled exclusively online, exclusively as a brick-and-mortar student, or as a hybrid student in both online and brick-and-mortar instruction. One commenter called for a demonstration program for competency-based education authorized by Congress that would test replacements for the credit hour and allow institutions to reasonably experiment with different models of interaction with students, but argued that in lieu of such a program no changes should be made to the consensus regulations.

Discussion:

We agree with the commenters who suggested that additional data regarding the use of distance education would be helpful; however, we do not believe that collecting such data through the National Student Loan Data system is the appropriate vehicle for that data collection to occur. We will consider the feasibility of the other suggestions offered by commenters for collecting data related to students who are enrolled in distance education. The Department does not have the authority without action by Congress to develop a demonstration program with waivers that exceed the Department's authority under the Experimental Sites Initiative.

Changes:

None.

Comments:

One commenter recommended that the Department eliminate the regulatory definition of “regular and substantive interaction” for distance education entirely, arguing that there is no reason to impose additional requirements beyond what is in the statute given advances in technology that permit detailed monitoring of a student's online activities. The commenter suggested that the Department is not obligated to define “regular and substantive interaction” in a way that would prevent many on-ground courses from meeting those requirements. The commenter further advised that the Department's definition of “academic engagement” was sufficient to eliminate any confusion that had arisen about distance education because it is widely understood that “regular and substantive interaction” is a descriptive term for “academic engagement.” Finally, the commenter noted that the Department is not required to follow or defer to its prior sub-regulatory guidance, in particular Dear Colleague Letter GEN-14-23, which provides additional explanation regarding the meaning of “regular and substantive interaction” with respect to distance education.

Discussion:

We disagree that the statutory requirements for “regular and substantive interaction” for a distance education program are sufficiently clear that a regulatory definition is not needed. For more than a decade since the statutory definition of “distance education” was first created, institutions have expressed confusion about the practical meaning of the term and have argued that the ambiguity of what constitutes regular and substantive interaction have hampered innovation as a result of fears of non-compliance and audit or program review findings. Moreover, the concept of “regular and substantive interaction” is an important differentiating factor between distance education and correspondence courses, which, if improperly understood, could result in institutional ineligibility for an institution that suddenly becomes aware that it has been offering more than half of its courses or enrolling more than half of its students through correspondence courses. We also disagree that the definition, as currently written, would be impossible to meet if it were offered in a classroom setting, since scheduling class sessions and performing ongoing monitoring of each student's performance and engagement in class are traditional teaching functions that do not require the use of sophisticated software systems.

We also disagree that the definition of “academic engagement” necessarily includes regular and substantive interaction between students and instructors and can be used in lieu of a description of those requirements in the regulations. While substantive interaction with an instructor related to a student's coursework is certainly a form of academic engagement, it is not synonymous with the broader concept of academic engagement.

Finally, the Department agrees that it is not required by law to continue to abide by the guidance in Dear Colleague Letter GEN-14-23, and plans to retract and revise aspects of that guidance as well as guidance in Dear Colleague Letter GEN-13-10, related to the application process for direct assessment programs, that will no longer apply upon the implementation of these regulations.

Changes:

None.

Comments:

One commenter recommended that the Department include the concept of “co-curricular” education in the definition of distance

education, in particular with regard to the requirements for substantive interaction. The commenter proposed that the definition be revised to express that distance education could be either curricular or co-curricular.

The commenter asserted that such revisions would recognize the importance of co-curricular activities, which the commenter defined as activities associated with and complementary of the curriculum. The commenter argued that, for many students who enroll in distance education programs, particularly adult learners, co-curricular learning plays a critical role in enhancing the student experience and helping to ensure student persistence and success and that such learning has also played a similar role in ground-based programs.

Discussion:

The Department agrees with the commenter that co-curricular activities—which are generally aligned with and designed to complement the academic curriculum—are useful and often vital components of a postsecondary program that support student persistence and success. Because of the close ties between academic coursework and co-curricular activities, we believe that there may be occasions in which such activities are designated by an institution's accrediting agency as types of substantive interaction under paragraph (4)(v) of the definition of “distance education.” If an accrediting agency designates a co-curricular activity as a type of substantive interaction, interactions involving that activity would meet the requirements of the definition. However, we believe that including the concept of co-curricular activities in the definition would increase the scope of activities more broadly than intended by the negotiating committee, and therefore decline to add the suggested language to the text of the definition.

Changes:

None.

Comments:

Two commenters offered conflicting opinions on whether the Department should emphasize the concept of “faculty” rather than “instructors” in the definition of “distance education”.

One commenter argued that the current requirements for instructors left too much discretion to institutions and accrediting agencies. The commenter recommended that the Department should emphasize to accrediting agencies that faculty should be the primary “instructors” in postsecondary education, regardless of modality. The commenter was supportive of innovation and the use of artificial intelligence or other innovative technologies but indicated that innovation could occur in the context of faculty interaction with students. The commenter expressed concern that the requirements for distance education in the proposed definition would not be the same as those for other modalities.

Another commenter expressed the opposite view, arguing that the Department's OIG had raised concerns about replacing the word “instructor” with the word “faculty” in the “Promoting Real Opportunity, Success, and Prosperity through Education Reform Act” (PROSPER Act), which was introduced in 2017. The commenter noted that the OIG believed that using the word “faculty” in the statutory definition of “distance education” would allow a school to qualify for full participation in the FSA programs based on email contact between students and faculty on matters unrelated to the subject matter of a program.

Discussion:

Though we do not agree with the level of concern that was raised by the Department's OIG regarding the use of the word “faculty,” or that the use of that word in lieu of “instructor” would substantially undermine the definition of “distance education,” we believe that the word “instructor” is more appropriate in this context. Given the use of the word “instructor” in the statutory definition of “distance education,” we believe that it is appropriate to focus on a staff member's instructional function, rather than that person's faculty role, when making a determination about whether the staff person can fulfill the requirement for regular and substantive interaction with students. The function of instruction and the role of faculty are not necessarily synonymous; for example, many institutions hire research faculty that do not have teaching responsibilities.

Changes:

None.

Comments:

One commenter indicated that the proposed requirements for substantive interaction did not appear to require any direct instruction or group discussion. The commenter asked whether it would be possible for an institution to fulfill the requirements for substantive interaction without human engagement,

e.g.,

through assessment and responses to students' questions through software or other non-human means. The commenter recommended that the Department include requirements for “engagement between students and instructors” rather than merely a reference to “engaging students” to make it clear that interactions need to be with human beings to meet the requirements.

Discussion:

Only individuals responsible for delivering course content and who meet the qualifications for instruction established by an institution's accrediting agency can fulfill the requirements for regular and substantive interaction with students. The Department does not prohibit other forms of substantive interaction that do not involve qualified instructors, but under the statutory definition such interaction cannot meet the requirements in the definition of “distance education.” Interactions with artificial intelligence, adaptive learning systems, or other forms of interactive computer-assisted instructional tools qualify as types of “academic engagement,” but in this limited context those forms of engagement do not meet the statutory requirements for regular and substantive interaction between students and instructors.

While we agree with the commenter about the importance of human interaction in this definition, we do not believe the commenter's proposed changes are necessary because the definition currently requires regular and substantive interaction between students and instructors; substantive interactions with machines or other forms of technology that do not involve instructor would therefore not qualify.

Changes:

None.

Comments:

One commenter asked the Department to reconsider the need for the specific language regarding distance education in an accrediting agency's scope of recognition and, in doing so, recognize that distance education is a more global term regarding instructional delivery provided which can include online delivery of instruction and internships and field experiences, such as clinical rotations.

Discussion:

While the Department recognizes that the term “distance education” is used to describe a wide variety of activities in higher education, the HEA requires a distance education program to be evaluated and approved by an accrediting agency with approval of distance education in the scope of its recognition by the Secretary.

Changes:

None

Definition of Juvenile Justice Facility (§ 668.2)

Comment:

One commenter supported the new definition of a juvenile justice facility to ensure that an otherwise eligible student is not prohibited from receiving a Federal Pell Grant solely because of confinement in such a facility.

Discussion:

We appreciate the support from the commenter. The Department has received questions in the past about

whether these facilities are correctional institutions and whether students in the facilities are eligible for Federal Pell Grants. Neither the HEA nor our regulations previously defined the term “juvenile justice facility.” Therefore, we proposed to define this term in the regulations to codify sub-regulatory guidance published on December 8, 2014 (Dear Colleague Letter GEN 14-21). We also sought to clarify the term as referenced in the Department's regulations and materials, including in the definition of “incarcerated student.” Accordingly, we aimed to clarify that students in juvenile justice facilities may receive a Federal Pell Grant if they are otherwise eligible.

Changes:

None.

Comment:

One commenter provided both support and opposition to the definition of “juvenile justice facility.” The commenter stated that the HEA does not allow those who are incarcerated in a Federal or State prison to receive a Federal Pell Grant and quoted the statutory language. This commenter then noted that our proposed HEA change would define “juvenile justice facility” as being included among the list of correctional facilities in the definition of “incarcerated student” for the purposes of Pell Grant availability. The commenter favored extending Pell Grants to students in juvenile justice facilities but opposed including juvenile justice facilities under the correctional institutions in the “incarcerated student” definition. The commenter believed that the Department's proposed definition caused confusion about what constitutes an incarcerated student by including juvenile justice facilities within the “incarcerated student” definition. Finally, this commenter also noted that the Department did not include any evidence or studies from appropriate prison education experts on how this change would clarify the availability of Pell Grants to students in juvenile justice facilities.

Discussion:

We proposed this new definition to clarify that a person incarcerated in a juvenile justice facility is not considered to be incarcerated in a Federal or State penal institution, regardless of who operates or has jurisdiction over the facility. This definition clarifies that students incarcerated in a juvenile justice facility continue to be eligible for Federal Pell Grants. We believe the commenter was mistaken. These regulations do not change or contravene the HEA. Additionally, the Department is unaware of available research on the interpretation of this term and is merely codifying current practice.

Changes:

None.

Definition of Incarcerated Student (§ 668.2)

Comments:

A couple of commenters expressed support for the revised definition of an incarcerated student. One commenter supported the emphasis on access to Federal Pell Grants while in a juvenile justice facility, noting the importance of funding to complete postsecondary education coursework and potentially obtain an academic credential. The commenter believed this change would not only help those in juvenile justice facilities, but society as a whole because education increases the likelihood of positive outcomes when students are released and reduces the likelihood those students will reoffend. Another commenter who supported the proposed change suggested that adding the term “juvenile justice facility” to the incarcerated student definition might imply that the Department is barring access to Federal Pell Grants to students serving in such a facility.

Discussion:

We appreciate the commenters' support for the revised “incarcerated student” definition. We do not agree that the revised definition implies a prohibition on eligibility for a Federal Pell Grant for those in a juvenile justice facility. In fact, we amended the definition of incarcerated student to clarify that those held in a juvenile justice facility are not considered to be incarcerated to ensure that these students continue to be eligible for Federal Pell Grants.

Changes:

None.

Comment:

One commenter indicated that some criminal juvenile activity and related records may be confidential and pointed out that individuals may be in a juvenile facility voluntarily or without a court requirement. The commenter suggested that privacy concerns call for the Department to reconsider adding “juvenile justice facility” to the incarcerated student definition. This commenter further noted that the Free Application for Federal Student Aid (FAFSA) does not include a question about incarceration and assumed that the Department would seek such information. The commenter asserted that continuing to exclude the phrase would simplify the regulation and avoid excluding necessary exceptions.

Discussion:

The changes to the definition of “incarcerated student” do not substantively change our current practice. We revised this definition for clarity and to ensure access to Federal Pell Grants for those in a “juvenile justice facility.” We do not believe this revised definition requires access to confidential records or poses a privacy risk, nor are we aware of any needed exceptions to the regulatory definition. As we will not exclude those in a “juvenile justice facility” from receiving the Federal Pell Grant, this change would not require an additional FAFSA question or the need for other information.

Changes:

None.

Direct Assessment Programs (§§ 600.10 and 668.10)

Comments:

Numerous commenters supported the proposed changes intended to simplify and clarify regulations for direct assessment programs. Commonly expressed among those writing in support, was the belief that the proposed changes strike an appropriate balance between supporting innovation, along with reducing the administrative burden on institutions, and ensuring a level of oversight necessary to promote program integrity.

Discussion:

We appreciate the commenters' support for these proposed changes.

Changes:

None.

Comments:

Several commenters expressed opposition to the proposed changes in § 600.10 requiring an insti

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