Higher Education Innovation and the Law Emerging Trends and Hot Topics Stephanie Gold October 2018
Agenda • Overview of regulatory context • Three education innovations – Distance Education – Competency-Based Education – Increased Access Through Novel Models
• Rulemaking developments
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Context Innovation trends • Several innovative methods of providing higher education services to students have become increasingly popular over the years, including: – Distance education – Competency-based education – Increased access to education (e.g., for students who do not wish to attend full time, for career changers, for those seeking continued education but not necessarily a degree)
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Context Postsecondary Education Regulatory Triad • U.S. Department of Education (ED) • Accreditation • State education licensure
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Distance Education Challenges and Opportunities • Current state of play • ED rulemaking • Higher Education Act (HEA) Reauthorization
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Competency-Based Education Challenges and Opportunities • Current state of play • ED rulemaking • HEA Reauthorization
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Increased Access to Education Challenges and Opportunities • Current state of play • ED rulemaking • HEA Reauthorization
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Rulemaking Developments Gainful Employment Notice of Proposed Rulemaking • Would rescind the Gainful Employment regulations, including the debt/earnings rates calculations and sanctions, reporting requirements, disclosure requirements, and certification requirements. • “[T]he Department has determined that in order to adequately inform student enrollment choices and create a framework that enables students, parents, and the public to hold institutions of higher education accountable, program-level outcomes data should be made available for all [T]itle IV-participating programs.”
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Rulemaking Developments Borrower Defense to Repayment Notice of Proposed Rulemaking • New federal standard – intent to deceive, knowledge of the falsity of a misrepresentation, or reckless disregard for the truth in making a misrepresentation of material fact, opinion, intention, or law upon which borrower reasonably relied and borrower was financially harmed. – Preponderance of the evidence versus clear and convincing – Defensive versus affirmative
• Financial responsibility mandatory and discretionary triggers
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Rulemaking Developments Intent to Conduct Negotiated Rulemaking • Public hearings in September 2018 • Comments due September 14, 2018 • Negotiated rulemaking to begin in January 2019 • Final Rule likely by November 1, 2019, with July 1, 2020 effective date
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DeVos Agenda Rulemaking Accreditation • Revise regulations related to the Secretary’s recognition of accrediting agencies. Proposed topics: – Requirements for accrediting agencies in their oversight of member institutions; – Requirements for accrediting agencies to honor institutional mission; – Criteria used by the Secretary to recognize accrediting agencies, emphasizing criteria that focus on educational quality; – Developing a single definition for purposes of measuring and reporting job placement rates; and – Simplifying the Department’s process for recognition and review of accrediting agencies.
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DeVos Agenda Rulemaking Innovation • State authorization, to address the requirements related to programs offered through distance education or correspondence courses, including disclosures about such programs to enrolled and prospective students, and other State authorization issues (34 CFR 600.9 and 668.50); • The definition of ‘‘regular and substantive interaction,’’ as that term is used in the definitions of ‘‘correspondence course’’ and ‘‘distance education’’ in 34 CFR 600.2, 600.7, and 668.10; • The definition of the term ‘‘credit hour’’ as it is used in 34 CFR 600.2, 602.24, 603.24, and 668.8; • The requirement that an institution demonstrate a reasonable relationship between the length of a program and entry-level requirements for the recognized occupation for which the program prepares the student (34 CFR 668.8(e)(1)(iii) and 668.14(b)(26)); Hogan Lovells
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DeVos Agenda Rulemaking Innovation • The arrangements between an institution and another institution or organization to provide a portion of an educational program (34 CFR 668.5); • The roles and responsibilities of institutions and accrediting agencies in the teach-out process (34 CFR 600.32(d) and 602.24); • The barriers to innovation and competition in postsecondary education or to student completion, graduation, or employment, including, but not limited to, those contained in the Department’s institutional eligibility regulations (34 CFR part 600) and student assistance general provisions (34 CFR part 668); • The simplification and clarification of program requirements to minimize inadvertent grant-to-loan conversions and to improve outcomes for Teacher Education Assistance for College and Higher Education (TEACH) Grant recipients (34 CFR part 686); Hogan Lovells
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DeVos Agenda Rulemaking Innovation • Direct assessment programs and competency-based education (34 CFR 668.10), focusing on the ability of institutions to develop, and students to progress through, innovative programs responsive to student, employer, and societal needs, including consideration of regulations that are barriers to the implementation of such programs, such as certain requirements for termbased academic calendars and satisfactory academic progress; and • In light of the recent United States Supreme Court decision in Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012 (2017), and the October 6, 2017, Memorandum for All Executive Departments and Agencies issued by the Attorney General of the United States pursuant to Executive Order No. 13798,1 the committee would consider revisions to the various provisions of the regulations regarding the eligibility of faith-based entities to participate in the title IV, HEA programs, including the Gaining Early Awareness and Readiness for Undergraduate Programs program, and the eligibility of students to obtain certain benefits under those programs (34 CFR 600.11 and parts 628, 674, 675, 676, 682, 685, 690, 692, and 694). Hogan Lovells
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Any Questions?
Stephanie Gold stephanie.gold@hoganlovells.com 202.637.5496
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