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Department of Education Releases Proposed Rules for Distance Learning

Board Governance Education

Schools and higher education institutions across the country are working tirelessly to implement remote learning programs during the coronavirus disease 2019 (COVID-19) public health crisis. Despite the commendable success schools and institutions have had implementing remote learning programs, Secretary of Education Betsy DeVos has been critical of state rules and regulations she believes stifle innovation in the remote learning space. In response to those concerns, the Department of Education released proposed Distance Learning and Innovation rules for higher education entities, which amend the Institutional Eligibility regulations and Student Assistance General Provisions regulations issued under the Higher Education Act of 1965 (HEA) and aim to expand student access, incorporate new technology, create flexible learning opportunities, and encourage innovation in the higher education space. Members of the public have 30 days to provide comments in support of or opposition to the rule, and the Department intends to publish the rule by November 1.

The proposed regulations, if implemented, would do the following:

  1. Amend “clock hour” and “credit hour” definitions to provide institutions additional flexibility
  2. Amend the definitions of “distance education” and “correspondence course” to account for changes in distance education technology and types of programs offered
  3. Clarify the requirements of regular and substantive interaction between students and instructors
  4. Ensure incarcerated students remain eligible for Pell Grants by defining “incarcerated student” and “juvenile justice facility”
  5. Allow students enrolled in foreign institutions to take courses at higher education institutions in the U.S.
  6. Create new conditions for the disbursement of federal funds (Title IV, HEA assistance) to students enrolled in subscription-based programs
  7. Clarify and simplify requirements for direct assessment programs, including how to determine equivalent credit hours
  8. Define and clarify how a “week of instruction” is evaluated in distance education programs
  9. Ensure students enrolled in distance learning programs are treated consistently with peers in traditional programs, and
  10. Clarify requirements regarding financial responsibility when institutions undergo changes of ownership or control.

The Department of Education’s proposed rules are subject to a notice and comment period and therefore, have not been formally adopted at this time. The Notice of Proposed Rulemaking was published in the Federal Register on April 2, and members of the public have until May 4, 2020 to provide public comments on the proposed regulations. The Department of Education has expressed its intent to publish the final regulations by November 1, 2020.

If you have comments, questions, or concerns about the proposed rules, contact the authors of this post or any other Franczek attorney. You can also submit comments directly to the Department of Education through contact information provided in the proposed rules.