The coronavirus pandemic and the previous Negotiated Rulemaking from Spring 2019 are driving new changes in the current and future regulatory process regarding higher education. Federal policymakers continue to extend guidance and develop new regulations in response to the pandemic. In addition, several new guidelines are coming on line that will affect higher education in areas including Title IX and online learning/innovation.

This guidance is coming during a time of chaotic change. A new Moody report also reported that the pandemic has sped up the normally glacial rate of change of higher education. This change normally would have taken 5-10 years period, but it now has been accelerated.

TEN Government Strategies CEO Tom Netting, a regular guest on this podcast, provides an update on the latest coming out of Washington, D.C. and how these will impact institutions and students.

COVID Guidance Extended

Several important decisions came out of the U.S. Department of Education recently that will help institutions and students. In one of these decisions, the Department extended the opportunity for students to delay repayment of student loans as well as the 0% interest rate.

The Department also offered additional guidance and extension of areas that were included in the CARES Act, including satisfactory academic progress, the Return of Title 4 Funds Policy, and audits and reports back to the department. The guidance was extended through the end of the calendar year or–if the pandemic has not been resolved–to a period after Dec. 31, 2020 when the emergency declaration is lifted.

This guidance includes:

  • Extends the leave of absence for students through the end of the year; this also can be extended if the pandemic hasn’t ended by then. During the pandemic, many of these leaves of absence have been used by students for experiential programs. These students had to be placed on a leave of absence because the internship/externship/clinic or other experiential learning opportunity was needed to complete their program. Without this, they couldn’t sit for their certification exams or complete the programs that had hands-on requirements. This guidance protects the students’ interest and allows them to complete their programs.
  • Extends institutional audits and reports—specifically fiscal and financial aid reports and fiscal audits, where auditors couldn’t complete the work with institutions—for a six-month period.
  • Extends the ability for institutions to protect students so they do not have to return federal funds provided through Return of Title 4 Funds. These funds were earmarked to help students who faced financial disruption due to COVID-19. These guidelines hold even if the students withdraw from the university or college, as long as their withdrawal is due to COVID-19.

The Department also gave some relief to institutions in relation to the academic calendar. For the purpose of the pandemic, the policymakers have loosened some of the guidance that originally required the traditional academic year to be strict rigid semester. This decision will help institutions utilize innovative schedules that allow students to take online courses over a shorter span of time (instead of an entire semester) while also getting the necessary clock hours. This change also helps institutions with the new standard regarding substantive interactions between the instructors

Online Education, Distance Education and Innovation

The Department also just did a soft release of a new piece of guidance around distance education, online education and innovation. This is the last of three pieces of guidance in this area, which the Department had developed during the past two years as part of the Negotiated Rulemaking from 2019.

This recent package built on prior information as well as current conditions. For example, the definitions or “regular” and “substantive” interaction were modified to help synchronous and asynchronous learning in the clock hour institutional environment. Other sets of circumstances were also addressed in these regulations, which are scheduled to take effect in July 1, 2021. (Any regulation that is Title 4-driven must be introduced on or before November 1 of the preceding year to go into effect July 1 of the subsequent year.)

Because this guidance had consensus approval and the Department has taken its time in bringing the guidance forward, the secretary and the Department have the authority to allow institutions to implement these regulations—which includes competency-based education and online education—the early, if they so choose. Netting believes some institutions will take advantage of that option.

Some of the shifts involve competency-based education, direct assessment and stackable credentials. A new Moody’s report indicated that non-degree certificate programs are growing at a 10% rate, even at major colleges and universities. This indicates a new opportunity for students to utilize online education to supplement their bricks-and-mortar experience as they work toward a two-year and/or four-year degree. These regulations also offer certificate/diploma options to fulfill basic requirements while also allowing these options to be stackable as students pursue a four-year degree or go on to earn a master’s degree.

There is a shift away from the Carnegie Method of assessment as institutions increasingly focus on using actual student assessment as is used in competency-based education. This change is on a dynamic level in real time. This round of negotiated rulemaking addressed this by encouraging a focus on skill sets that students need to develop instead of seat time. This guidance also encourages institutions to focus on the actual progression and assimilation of the education that students receive.

The guidance also asks institutions to look at prior learning experience and give credit for prior mastery before entering the education system. This especially is relevant to veterans who have skill sets in vocations or disciplines that are degree-based.

Title IX

New Title IX regulations go into effect in September that will increase the focus on the rights of the accused. One of the areas that is addressed include cross-examination by the accused or his/her representative of the victim.

Some of the changes in these regulations are contentious and many on Capitol Hill are expressing concerns. However, institutions will need to follow the published final regulations that include hearing processes.

These regulations also change how institutions do investigations and hearings.  However, the new requirements also benefit higher education institutions by limiting the number of employees at the institutional level who have to report and track these allegations; this number had become unwieldy at many institutions. Now institutions will offer more directed circumstances for the accused and victim to follow.

Institutions are working diligently to move forward with these regulations. The Department should be providing additional guidance soon to help students and institutions implement these new regulations. Netting also expects to see some FAQs that will help guide development of policies, procedures and implementation at the institutional level.

On the Horizon

First and foremost, the Department probably will be coming out with additional guidance on the Higher Education Emergency Relief Fund, which was part of the CARES Act. Half of those funds were earmarked for students while the other half went to institutions. The department has done a good job in providing guidance for students, and additional guidance should be coming out for institutions on how they can use these funds, especially in relation to payroll, as well as reporting requirements. Some clarification has been offered through FAQs, but additional guidance is needed. Netting anticipates this guidance will come out around Labor Day.

Congress and the White House continue to negotiate a number of proposals related to COVID-19. There has been down time due to the national conventions, but Netting believes discussions will ramp up soon concerning the next stimulus package. The Republicans have two bills out—a skinny bill and a regular bill, both called the HEALS Act—while the Democrats have the HEROS Act. President Trump also has items that he wants to place in a bill.

Some of the major contentious issues involve liability for the employer and employees as well as funding for state and local communities. Netting believes that the next bill will primarily focus on elementary/secondary education whereas higher education had the greater part of the CARES Act. However, Netting believes that higher education will still get some funding.

Netting pointed to key nuances that are beginning to emerge:

  • The Senate Republican bill (which may have Democratic support) would make a retroactive change to the CARES Act in relation to payroll and lost revenue, which will help with guidance for institutions on how they can utilize these funds. From the student’s perspective, the bill would expand the use of funding given to students to include tuition and fees.
  • There also will be technical corrections to help all institutions in regards to financial responsibility as well as some of the regulatory requirements that institutions need to fulfill on a regular basis, such as composite scores. All institutions are hurting right now and will need some relief in assessing their fiscal positioning going into the next year or two.

Bullet Points

  • Several extensions have come out recently, including repayment of student loans, student leave of absence, reporting deadlines for fiscal and financial aid reports and fiscal audits, and Return of Title 4 Funds.
  • The Department also provided relief on the educational calendar to allow institutions to have flexibility due to the pandemic.
  • The Department’s soft release of a new piece of guidance around distance education, online education and innovation addresses modifying “regular” and “substantive,” changing synchronous and asynchronous learning, and addressing competency-based education, direct assessment and stackable credentials.
  • Assessment also is shifting to encourage a focus on skill sets instead of seat time. In addition, institutions can consider the student’s previous experiences in relation to awarding credit for specific skills.
  • Title IX guidelines have been published and focus on the rights of the accused. These regulations change how institutions do investigations and hearings.
  • The Department will be coming out with additional guidance on the Higher Education Emergency Relief Fund, which was part of the CARES Act. This guidance should come out around Labor Day.
  • Both political parties are focused on creating a new bill related to the pandemic. Some of the major contentious issues involve liability for the employer and employees as well as funding for state and local communities. Netting anticipates the next bill will primarily focus on elementary/secondary education; however, higher education still should see some funding.
  • These bills also may provide additional guidance for how higher education institutions and students can use funding from the CARES Act, as well as technical corrections to help guide financial responsibility and the regulatory requirements that institutions need to fulfill on a regular basis, such as composite scores.

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