U.S. DEPARTMENT OF EDUCATION ISSUES NEW DISTANCE EDUCATION AND RELATED REGULATIONS

Maynard Cooper Gale

September 4, 2020

The U.S. Department of Education (“Department”) this week published final regulations in the Federal Register to update and revise requirements for distance education programs and to make related changes to other regulations.  Secretary DeVos said in a statement that the new rules “promote educational innovation to better serve the needs of an increasingly diverse population of students.”  The Department also issued a fact sheet to summarize the significant policy changes.  The new regulations are effective as of July 1, 2021, but the Secretary exercised her discretion to allow institutions to implement the new regulations immediately.

These final regulations represent the last step in Department’s expansive 2019 negotiated rulemaking exercise.  The negotiators in that rulemaking session surprised many by reaching consensus on all topics under consideration, and the Department subsequently issued three sets of proposed regulations consistent with the consensus decisions.  The Department issued final rules on accreditation and state authorization matters on November 1, 2019, and on issues related to TEACH Grants and faith-based entities on August 14, 2020.  These new distance education regulations complete the rulemaking process.

The new regulations make a host of changes, such as:

1. clarifying the distinction between distance education courses and correspondence courses;

2. defining the previously problematic requirement for “regular and substantive interaction” in distance education programs;

3. providing for additional flexibilities in applying the concepts of clock hours and credit hours, including in distance education and direct assessment settings;

4. simplifying rules for disbursement of Title IV funds to students enrolled in newly defined “subscription-based programs”;

5. allowing for continued Pell Grant eligibility for students incarcerated in a “juvenile justice facility”;

6. permitting students enrolled in Title IV-eligible foreign institutions to complete portions of their programs at eligible institutions inside the United States;

7. modifying the rules regarding the maximum number of clock hours in programs that lead to gainful employment in a recognized occupation; and

8. requiring the Department to take “prompt action” on applications for certification and recertification.

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