Key Concerns With Program Integrity and Institutional Quality Rules
As reported in CECU Daily Clips, the U.S. Department of Education sent its draft proposed rule to the White House’s Office of Management and Budget (OMB) that includes Distance Education, Return to Title IV, and Federal TRIO Programs. These topics stem from the negotiated rulemaking on Program Integrity and Institutional Quality. CECU has identified the key issues from the most recent neg reg session that were included in the package (most notably the asynchronous clock hour provision) and those that were not included. As a component of OMB’s Office of Information and Regulatory Affairs (OIRA) review, stakeholders may request meetings to discuss the impact of the rule. Once OIRA completes its review and approves the Department’s draft proposed rule, the Department will publish the draft rule in the Federal Register and invite public comments.
Previously, CECU raised concerns with the issue papers for these rules during the negotiated rulemaking process. Of particular interest to career education are issues listed below:
- Distance Education: The Department proposes to eliminate “asynchronous” from the definition of clock hour program. This would prohibit clock hour programs from providing any portion of a clock hour program curriculum through asynchronous modes (i.e., recorded lectures). Many clock hour programs moved to asynchronous curriculum components during the pandemic and found it benefited student outcomes and were preferred by students. The Department proposed that the definition of a clock hour in a distance education program is “50 to 60 minutes in a 60-minute period of attendance in a synchronous class, lecture, or recitation where there is opportunity for direct interaction between the instructor and students.” During the negotiations, the Department did cite an audit of a clock hour program where asynchronous curriculum engagement was measured effectively. While the Department continued to voice concerns that institutions did not use effective means to monitor student engagement in these programs well it did signal that it would consider alternative approaches to provide sufficient guardrails.
- R2T4: The Department proposes to remove the 49% completion of the payment period provision for determining whether a student had earned 100% of their Title IV funds for a payment period offered in modules during which the student withdrew. ED would retain the provision that a student is considered to have earned 100% of their aid if they completed coursework in modules that comprised at least half-time enrollment. The Department asserted that this would simplify R2T4 for schools, but institutional negotiators argued that current reporting was not a burden and that this policy change would hurt students.
- R2T4: The Department proposes to eliminate the use of the cumulative method of determining the percentage of the payment period a student completed for R2T4 purposes for clock hour programs, retaining only the payment period method.
- R2T4: The Department proposes in those cases where students are enrolled exclusively in distance education, the Department would require institutions to determine the date a student withdrew per the rules for attendance-taking institutions. Jillian Klein, negotiator representing proprietary institutions of higher education, urged the Department to include language excluding direct assessment programs from the attendance taking requirement. The Department disagreed, and Klein’s opposition to the proposal blocked the committee from reaching consensus.
It is notable that the Department did not send proposed rules on Accreditation, State Authorization, or Cash Management to OMB for review. These three topics did not reach consensus during negotiated rulemaking. In recent conversations with Department officials, CECU was made aware that State Authorization and Accreditation rules would not be part of the first package of rules put forward by the Department. The Cash Management rule issue paper contains the proposed changes that would prohibit “opt-out” program for institution direct billing for books and supplies.
OIRA is responsible for consulting with federal agencies as well as concerned members of the public to determine a proposed rulemaking’s potential costs and benefits to society. Stakeholders can often influence draft rules by meeting directly with OIRA. Adversaries of proprietary institutions have historically taken advantage of this forum to express their views and provide suggested changes.
Once OIRA approves the Department’s draft proposed rule, typically within 30-90 days, the Department will publish its Notice of Proposed Rulemaking (NPRM) in the Federal Register for public comment.
What Institutions and Other Stakeholders Should Do Now
CECU is encouraging all affected institutions and other stakeholders to schedule a meeting with OIRA to discuss the potentially harmful impact of the contemplated rules. Through our collective participation in the OIRA meeting process, we will make ourselves heard regarding the deficiencies and resulting risks of the proposed rule.
Institutions can meet with OIRA on their own or consider banding together with other postsecondary institutions or engaging legal counsel to help represent the institution’s interests. Before meeting with OIRA, we encourage you to reach out to Jordan Wicker, Senior Vice President of Legislative and Regulatory Affairs for additional context.
How Do I Schedule My Meeting?
You should schedule your 30-minute meeting with OIRA as soon as possible. By meeting with OIRA now (before the new language has been formally presented or the official policy has been put forward), we put ourselves in the best possible position to convince the White House and the Department to not proceed hastily in adopting language that, as presented during negotiated rulemaking, threatens significant harm to not only career education institutions, but the American higher education ecosystem.
- Go to the following website: https://www.reginfo.gov/public/do/eo/neweomeeting.
- Enter the following Regulatory Identification Number (RIN): 1840-AD92.
- Confirm on the next screen that the Meeting Title includes: "Program Integrity and Institutional Quality: Distance Education [1840-AD92], Return of Title IV, HEA Funds [1840-AD85], and Federal TRIO Programs [1840-AD68].”
- Provide the name of your institution or organization as the "Requestor’s Organization," and your name and contact information as the "Requestor."
- You will receive an email confirmation from OIRA, which could take up to 24 hours.
Resources
You can find all relevant Department materials and meeting transcripts here.
CECU Summaries of Negotiated Rulemaking sessions:
These issue papers were reviewed during negotiated rulemaking and did not reach consensus:
Links to Department Guidance on Asynchronous Clock Hours: