Distance Education Program Compliance Requirements and COVID-19

The August 2020 release of the Office of Management and Budget’s 2 Code of Federal Regulations (CFR) Part 200, Appendix XI (Compliance Supplement) includes an increased focus on distance education program compliance requirements. According to the Compliance Supplement, “a distance education course is a course offered to students who are separated from the instructor and involves regular and substantive interaction between students and the instructor. Such courses are offered via: (1) the internet; (2) open broadcast, closed circuit, cable, microwave, broadband lines, fiber optics, satellite or wireless communication devices; (3) audio conferencing; and (4) video cassettes, DVDs and CD-ROMs if these are offered in conjunction with any previously offered methods (34 CFR 600.2).”

The Compliance Supplement focuses on requirements related to program accreditation, and student participation. “Institutions must have been evaluated and accredited for its effective delivery of distance education” by a recognized accrediting agency. “An institution must demonstrate that a student participated in class or was otherwise engaged in an academically related activity, such as by contributing to an online discussion or initiating contact with a faculty member to ask a course-related question” to achieve compliance. It is not sufficient for an institution document that “a student has logged into an online” class to prove student participation. “All Title IV funds disbursed to students attending these programs must be reported as questioned costs” if an institution is unable to substantiate compliance with either requirement.

Due to the COVID-19 pandemic, many institutions have been anticipating the possibility of moving substantially all students off campus, and transitioning to online programs. The U.S. Department of Education (DOE) released information related to these programs in a series of letters between March and June of 2020 that provided “broad approval to institutions to use online technologies to accommodate students without going through the regular approval process.” Additionally, the DOE is “permitting accreditors to wave their distance education review requirements for institutions working to accommodate students whose enrollment is otherwise interrupted as a result of COVID-19.”  The DOE has also lowered the bar when it comes to institutions’ responsibility to document student attendance. To meet the DOE’s “requirements for providing distance education, an institution must communicate to students through one of several types of technology, including email,” and “instructors must initiate substantive communication with students, either individually or collectively, on a regular basis.”  The DOE has made these provisions effective “through the end of the academic year that includes December 31, 2020, or the end date for the COVID-19 Federally declared emergency, whichever occurs later.”

Institutions are experiencing a variety of results across the nation in response to their attempts to mitigate the spread of COVID-19 on campuses, and there is still substantial uncertainty as to what the Spring 2021 semester will look like. Institutions should consider the risks related to online programs as they react to changing circumstances, and plan for 2021. There has been no guarantee that the provisions listed in the DOE COVID-19 emergency response will extend past December 31, 2020. If the provisions lapse, institutions will be required to be accredited to offer distance education programs, and will be subject to the compliance requirements in the August 2020 Compliance Supplement for the Spring 2021 semester. Any non-compliance will result in questioned costs. 

If you have questions about Distance Education Program compliance requirements, contact your subject matter experts at Schneider Downs.

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