Did Your Course Go Digital Due to COVID-19? Playbook Advises on Regulations When Making the Switch

The spring 2020 term saw an unprecedented response to an unprecedented challenge as virtually every U.S. higher education institution offering face-to-face instruction rapidly switched to remote instruction, many in as little as one to two weeks and some in a few days. Institutions struggled to resolve challenges ranging from the technological to the pedagogical to the administrative. For faculty and academic administrators new to teaching online, this rapid shift was often overwhelming and disorienting as they tried to simultaneously master unfamiliar technology tools, federal and state regulations, online student support systems, and pedagogical approaches.

Addressing the complex web of federal, state, and accreditation regulations governing distance education was a secondary concern for many institutions, and even the institutional personnel knowledgeable of this regulatory landscape were hard pressed to keep up with the growing numbers of waivers and regulatory interpretations governing distance education issued by the Department of Education beginning on March 5, 2020.

In September 2020, WCET in collaboration with WCET | SAN and support from Every Learner Everywhere published Pursuing Regulatory Compliance for Digital Instruction in Response to COVID-19: Policy Playbook. This playbook provides administrators and faculty with a concise and easy to use guide to the most significant regulatory issues impacting digital learning. Each section of the Playbook provides links to regulations and Department of Education guidance where available. Used in conjunction with Delivering High-Quality Instruction Online in Response to COVID-19: Faculty Playbook, instructors and administrators have an overview of the most critical pedagogical and regulatory concerns surrounding online and digital education quality and student success.

The Playbook is divided into five sections—accreditation, federal financial aid regulations, state authorization and professional licensure, course level regulations, and student civil rights. The Playbook also includes an explanation of the regulatory triad, a discussion of how to use the Playbook on your campus, and links to several appendices that feature deeper dives on quality and accreditation, federal financial aid, accessibility, and state and professional licensure. Taken together, the Playbook is a thorough reference examining the largest and most important regulatory issues.

ACCREDITATION

As a critical component of the regulatory triad, accrediting agencies are responsible for evaluating the academic quality of an institution and/or its programs. The U.S. Department of Education, in turn, relies on accreditor actions to attest to academic quality for federal financial aid eligibility and maintains a list of Department-approved accrediting agencies. Accreditors must fulfill a number of Departmental requirements to retain recognition, including requirements associated with the approval of distance education at the institutional and possibly programmatic levels. This section includes information on institutional accreditation and programmatic accreditation.

Institutional accreditation

Under normal circumstances, the approval to offer distance education is a multistep process that includes approval from an institution’s accreditor as well as the U.S. Department of Education (the Department). In early March 2020, the Department announced that it would waive regulations requiring Departmental approval of distance education programs. Additionally, the Department announced that it would permit accreditors to also waive distance education review requirements. The Department of Education issued an initial waiver on March 5, 2020, and updated that guidance on August 21, 2020. The waiver of both Departmental distance education approval and allowing accreditors to waive distance education approval is now extended through December 31, 2020, or the end of the payment period that includes the termination of the federally declared pandemic-related national emergency.

Programmatic accreditation

Program accreditors provide assurance of educational quality for specialized academic and technical programs at postsecondary institutions. Program accreditation is in addition to institutional accreditation. In select professions, it is required by a state licensing board to provide program approval for licensure in specialized fields such as nursing, medicine, law, and education. Many programmatic accreditors have requirements regarding distance education programs in their fields and have offered more flexible requirements around the modality of instruction, experiential learning, and grading policies in response to the COVID-19 pandemic. Additionally, the Department of Education is offering certain flexibilities through December 31, 2020, or the payment period that includes the termination of the federally declared pandemic-related national emergency. These flexibilities include virtual site visits and waivers for distance education requirements.

FEDERAL FINANCIAL AID ELIGIBILITY

The second component of the regulatory triad involves the federal government and its regulatory role associated with financial aid. An institution’s ability to remain eligible for federal financial aid, especially Title IV programs such as Pell Grants, is connected to a number of financial aid regulations including regulations about course and program modality, interactions between faculty and students, and student satisfactory academic progress. In addition to these Title IV financial aid regulations, administrators should also be aware of distance education specific regulations that impact student use of GI Bill benefits.

Correspondence education, distance education, and regular and substantive interaction

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In addition to Title IV financial aid regulations, administrators should also be aware of distance education specific regulations that impact the categorization of courses as correspondence education or distance education, including the presence of regular and substantive interactions. The Department of Education has NOT waived any regulations related to the definition of correspondence courses, distance education, and regular and substantive interaction due to the novel coronavirus pandemic. On August 24, 2020, the Department of Education released final correspondence and distance education regulations.

Determining last date of attendance for students who withdraw without notice  

There are many factors which may compel a student not to complete a course in which they are enrolled. While institutions have policies requiring students to notify the institution of their intention to withdraw, sometimes students simply drop out without notice and that triggers requirements for the financial aid office to determine when the student stopped attending classes. For students that withdraw before the end of the term, the financial aid office conducts a Return to Title IV (R2T4) calculation to ascertain the balance between how much aid the student earned for that term and how much was disbursed. For in-person courses, mere proof that a student attended a class is sufficient, while there is a higher bar for distance education courses. If an institution moves to remote or online learning for a term, they are subject to the higher bar of proof. The Department of Education has NOT waived any regulations related to the determination of the last date of attendance for students who withdraw without notice from courses, regardless of the modality used in offering the course.

Satisfactory academic progress

In addition to paying attention to the differences between correspondence and distance education, regular and substantive interactions, and tracking last date of attendance for Title IV financial aid eligibility, institutions should also be aware of the impact that pandemic-related decisions could have on satisfactory academic progress (SAP) and student eligibility for continued Title IV federal assistance. The Department of Education issued initial guidance on satisfactory academic progress on March 5, 2020 and updated that guidance on August 21, 2020. Satisfactory Academic Progress (SAP) waivers and guidance are now extended through December 31, 2020, or the end of the payment period that includes the termination of the federally declared pandemic-related national emergency.

GI Bill benefits for student veterans

The GI Bill provides benefits for students who are veterans or who have family members using their veteran’s benefits and are enrolled in a postsecondary degree or certificate program. Both students and institutions must meet certain criteria to remain eligible for these benefits. Because of restrictions placed on the use of GI Bill benefits for distance education, the COVID-19 pandemic had a heavier impact on students using GI Bill benefits. Prior to the enactment of emergency legislation by Congress, the GI Bill directed that veterans who take all of their courses in a term at a distance receive only half of the Basic Allowance for Housing (BAH) that veterans who enroll completely on-campus or in a mix of face-to-face and online courses receive. Due to COVID-19, Congress enacted two pieces of emergency federal legislation to support veterans including providing full Basic Allowance for Housing benefits for veterans studying at a distance. The second piece of legislation ensures the continuing payment for work study jobs affected by the pandemic.

Consortia agreements

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Consortium agreements allow a student to receive financial aid from their degree-granting institution while also taking courses at another institution. These types of agreements predate COVID-19. On March 5, 2020, the United States Department of Education (the Department) reminded institutions of this option and clarified that such consortia agreements may be temporary and used during the COVID-19 pandemic. The Department has also given accreditors permission to waive residency requirements associated with graduation. These waivers are now extended through December 31, 2020, or the end of the payment period that includes the termination of the federally declared pandemic-related national emergency.

STATE AUTHORIZATION AND LICENSURE

The third component of the regulatory triad that impacts institutions offering distance education are state agencies. In addition to accreditation and financial aid regulations, institutions may also be impacted by state authorization and professional licensure requirements as they offer more distance education, especially to students residing in other states.

State authorization of distance education

If an institution offers activities to any students located in another state, then the institution must obtain authorization according to the regulations of that state. States vary in how they regulate online learning occurring within their borders. This responsibility applies even for courses that started the academic term as face-to-face and then converted to remote instruction in response to COVID-19. The Department of Education guidance from March 5, 2020, provides flexibility regarding state compliance for purposes of Title IV. There are a number of states that have not issued any waivers for institutions that are not participants in the State Authorization Reciprocity Agreement. However, that guidance does not absolve the institution from compliance with any state requirements applicable to the activities the institution is conducting.

Professional licensure notifications for students

Institutions must provide notifications for prospective and enrolled students regarding on-ground and distance education programs leading to professional licensure or certification to indicate whether or not the curriculum meets state requirements or indicate that no determination is made. Institutions that offer academic programs leading to professional licensure or certification must adhere to state and federal laws and regulations regarding these programs. State laws, regulations, or requirements may require an institution to obtain program approval to offer instruction and activities leading to licensure or certification in that state. New federal regulations, effective July 1, 2020, require institutions participating in Title IV programs to provide general and direct notifications regarding educational requirements to prospective and enrolled students in programs leading to professional licensure. These notifications are required for all programs leading to professional licensure or certifications regardless of the modality of instruction. COVID-19 may have affected state educational requirements in some states and professions. However, the Department of Education has not offered any waiver or flexibility about providing professional licensure notifications.

COURSE LEVEL REGULATIONS

In addition to the regulations that impact institutions and programs, there are also regulations for which the impact is felt mostly at the course level, especially in an online, blended, or hyflex course environment. Two such policies that institutions should be particularly aware of are the regulations associated with student identity verification and intellectual property and the use of copyrighted materials in online classes.

Student identity verification

Instructors everywhere want to curtail cheating on exams, plagiarism, submission of purchased essays written by others, and all forms of academic dishonesty by students. While such activities occur in all modalities of course offerings, only for distance education is there a requirement regarding student identity verification. This regulation is among the standards that institutional accrediting agencies must apply to the institutions that they oversee. Essentially, the accrediting agency must require that institutions have processes to ensure that the student who registers for a course is the same one who academically engages in the course. As faculty move into online courses, they should be aware that accreditors will be placing an additional focus on this issue. On March 5, 2020, the Department of Education issued guidance to both institutions and accreditors in response to the pandemic and in the interest of maintaining academic continuity. As part of that guidance, the Department provided accreditors with the option of waiving certain accreditation criteria during the state of national emergency including accreditor review requirements for student identify verification and student notification of charges associated with proctored exams. These waivers are now extended through December 31, 2020, or the end of the payment period that includes the termination of the federally declared pandemic-related national emergency

Fair use in using digitized materials or videos

In a traditional face-to-face course, faculty are accustomed to using many kinds of copyrighted materials. Faculty may rely on the concept of fair use, which is a legal doctrine that permits the use of copyrighted works, but only under certain conditions. When a course moves from face-to-face to a remote, hybrid, blended, or hyflex format, the calculus may change for whether the work is still covered by fair use or not. While the factors for determining fair use remain the same, the act of digitizing materials and the opportunity for increased access and distribution of the work change the calculation. The Department of Education has NOT waived any regulations related to copyright or fair use provisions in courses that have transitioned to remote instruction due to COVID-19.

STUDENT CIVIL RIGHTS

A number of regulations protect student civil rights. None of these regulations are unique to online education but may take on different meanings in the online classroom. As institutions develop more online and hybrid courses in response to the pandemic, or even shift to remote instruction again, administrators should be aware of their responsibilities to protect student civil rights.

Accessibility for students with disabilities

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Since the early 1970s, higher education accessibility for students with disabilities has been the subject of U.S. statutes. Starting with the 1973 Federal Rehabilitation Act and continuing with the 1990 passage of the Americans with Disabilities Act, higher education institutions have been responsible for providing students with appropriate and reasonable accommodations. In 2019, the Department of Education’s Office of Civil Rights opened investigations of over 200 schools for accessibility violations including those related to technology and communication. The Department of Education has NOT waived any regulations related to copyright or fair use provisions in courses that have transitioned to remote instruction due to COVID-19.

Title IX

Title IX of the Education Amendments of 1972 prohibits discrimination on the basis of sex at institutions receiving federal funding. Department regulations, as of August 14, 2020, require institutions to hold live hearings that allow cross-examination, narrow the scope of sexual harassment related complaints, and allow institutions to eliminate mandatory reporting requirements. The Department of Education has not waived any regulations related to Title IX.

Family Educational Rights and Privacy Act (FERPA)

Under the Family Educational Rights and Privacy Act (FERPA), institutions are required to protect a student’s personally identifiable information (PII). The Department of Education has not waived any regulations related to FERPA and student privacy.

Clery Act

The Clery Act is a federal consumer protection law that requires institutions to disclose crimes and emergencies on or near their campuses. Institutions are not required to provide ongoing notifications and updates regarding coronavirus cases on campus nor are they required to provide information on “cases among individuals who are not attending classes, working, or residing on campus or to require notifications to such individuals” (Office of Postsecondary Education, 2020). This guidance is effective through June 30, 2020, but may be extended at the discretion of the Department. The Department of Education has not waived any regulations related to the Clery Act.

Coming Attractions: Deep Dives on a Few Regulatory Areas

Over the next several weeks, WCET Frontiers will highlight the Playbook and the deep dive appendices associated with the Playbook. Blog posts will include discussion of the role of accreditation and quality during the pandemic, student financial aid regulations, state authorization and professional licensure, and accessibility. You can access the Playbook at Every Learner Everywhere’s site and can access the appendices on Every Learner’s resource site, Solve.


van davis headshot

Van Davis
Policy and Planning Consultant, WCET
vdavis@wiche.edu    @historydoc


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My name is Lindsey Rae Downs. I am the Assistant Director of Communications and Community for WCET, the WICHE Cooperative for Educational Technologies. I work remotely from beautiful Helena, MT.

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