Legal Considerations and Issues. By Geraldine Muir and Michael B Goldstein. certifies students mastery of institutionally-identified

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ompetency-based education certifies students’ mastery of insti-tutionally-identified learning outcomes through the evaluation of student work product and directed assessments. Unlike traditional academic programs that are structured in credits or clock-hours, and require documentation of instructional time supported by student work-product for financial aid eligibility; eligibility for a competency-based education requires evidence of student learning. And where, credit and clock-hour programs are structured around instructional time convenient to the faculty’s delivery of instruction, com-petency-based programs allow students to progress through their academic program at a pace that is best for the student.

However, for many years, or, to be precise, forty-nine, counting from the passage of the seminal Higher Education

Act of 1965, it was assumed that only instruction that could be measured either by credit hours or clock hours could qualify as Title IV eligible. Of course, during that time, seismic advances occurred in the technology and pedagogy of higher educations,

and a few brave schools sought to operate as competency-based insti-tutions. Sadly, the lack of statutory authority rendered it impossible to qualify students enrolled in these

programs for Title IV assistance – unless their learning activities were transmuted into credit or clock hours. Western Governors University is a prime example of an institution that was established in 1997 on the basis of competency-based learning, and until very recently dutifully made the necessary conversions to standard credit hours upon which financial aid could be calculated.

In theory, that all changed eight years ago, when, in enacting the Higher

Education Reconciliation Act of 2005, Congress made what was then regarded

Establishing Federal

Financial Aid Eligibility

for Competency-Based

Education

By Geraldine Muir and Michael B Goldstein

Sadly, the lack of statutory

authority rendered it impossible

to qualify students enrolled

in these programs for Title IV

assistance – unless their

learn-ing activities were transmuted

into credit or clock hours.

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as a minor tweak in the legislation governing the Title IV student aid programs. In the words of the Depart-ment of Education:

Well, more on that in a moment. In November, 2006, the Department published final rules governing the implementation of the changes made by the Congress in the 2005 Act. Out of scores of pages of regulatory language

and explanation, roughly half a page was devoted to “direct assessment,” and that did no more than describe in broad outline the methodology an institution must apply. From that date until March, 2013, the Depart-ment was silent on competency-based learning, at least insofar as it could be supported through student aid. It is not surprising that over the course of

the intervening 7 years only one insti-tution applied for that authority. It was only in March of last year that the Department released a “Dear Colleague” letter encouraging institutions to seek approval of competency based

programs, and later that Spring small New England college, Southern New Hampshire University, secured the first Department of Education approval to implement a truly competency-based program. It is in the March, 2013 Dear Colleague letter that the Department says the following about the 2005 amendment:

[The new provision] established the eligibility of direct assessment [competency based] programs to participate in the title IV, HEA programs. Specifically, the HERA provided that instructional pro-grams that use direct assessment of student learning, or that re-cognize the direct assessment by others of student learning, in lieu of measuring student learning in credit hours or clock hours, may qualify as eligible programs if the assessment is consistent with the i n s t i t u t i o n ’s o r p ro g r a m ’s accreditation.

The Dear Colleague letter, although late in coming, had a salutary effect. In 2013 interest in competency-based education exploded throughout the postsecondary education community. It is not difficult to understand why.

As the movement to provide

competency-based programs

continues to grow and mature,

best practices are evolving

that can save institutions in the

initial stages of

competency-based academic program

development valuable time

and resources.

GERALDINE "GERRY" MUIRis an associate in Cooley's Higher Education practice group and resident in the Washington, DC office. Ms. Muir was associated with Dow Lohnes, which merged with Cooley in 2014.

Ms. Muir advises colleges, universities and other postsecondary institutions on issues related to programmatic and institutional accreditation, federal and state regulatory compliance, and the management of regulatory reviews and adverse actions. She specializes in issues related to Title-IV compliance for distance education programs, credit hour assessment, regulatory approval and appeal

processes, FERPA, FOIA, The Jeanne Clery Campus Safety Act, and competency-based education.

Prior to Dow Lohnes, Ms. Muir served as a university administrator at several public and private institutions, overseeing financial resource m a n a g e m e n t , s t r a t e g i c p l a n n i n g , s t u d e n t conduct, diversity initiatives and supervision of staff. As the Associate Dean of Student Affairs at Drew University, she was recognized nationally for her leadership role in student volunteer and service learning initiatives.

Contact Information:

Geraldine Muir, Associate Cooley LLP

1299 Pennsylvania Avenue, NW Washington, DC

Office: 202-776-2347 Email: gmuir@cooley.com

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With many in the U.S. questioning college affordability, completion rates, and the attainment of learning outcomes, it’s not surprising to see a growing number of institutions, including (at last) the Department and industry supporters such as the Bill & Melinda Gates and Lumina Foundations, invest-ing significant resources into the development of these programs.

Yet several institutions of higher education have had their efforts to develop competency-based educational programs delayed, or derailed, due to uncertainty as to how they can comply with the federal financial aid eligibility rules. Academic leaders lament the lack of clarity as to which competency-based programs require approval by the Department before being eligible for federal student aid program parti-cipation, and which

competency-based programs are governed by the standard Title IV definitions. As the movement to

provide com-petency-based programs continues to grow and mature, best practices are evolving that can save institutions in the initial stages of competency-based academic program development valuable time and resources. Below are a few of the first

steps institutions should take to ensure their competency based education programs are eligible to participate in the federal student aid programs.

MICHAEL B. GOLDSTEIN

is a partner in the Cooley Business department and co-chair of the Firm's Higher Education practice group. He was the founder and co-chair of the Higher Education industry practice at Dow Lohnes, which merged with Cooley in 2014. He is resident in the Washington, DC office. Mr. Goldstein leads a group of lawyers and professionals with long experience and deep expertise in serving clients in the postsecondary sector, including public, independent and for-profit institutions, national, state and regional organizations, institutional and professional a c c r e d i t i n g c o m m i s s i o n s , c o u r s e w a r e developers, service providers, lenders and many of the private equity groups active in the field.

M r . G o l d s t e i n h a s b e e n a p i o n e e r i n t h e development and rational regulation of higher education in general and online learning in particular, and in the creation of innovative approaches to combining the resources and interests of the non-profit, public and for-profit postsecondary communities. He has served on numerous panels and committees on a variety of higher education issues, including as an expert member of the UNESCO-CHEA Task Force on Degree Mills and as a member of the National Advisory Panel for the enactment of the State

A u t h o r i z a t i o n R e c i p r o c i t y A c t . H e h a s l o n g served as General Counsel to the American Association of Community Colleges (AACC) as well as in the past as general counsel to other higher education organizations, including the S t a t e H i g h e r E d u c a t i o n E x e c u t i v e O f f i c e r s (SHEEO) and the Middle States Commission on Higher Education (MSCHE). He is the author of the chapter on Legal Issues in the Encyclopedia of Distance Learning as well as many papers and c h a p t e r s i n p r o f e s s i o n a l j o u r n a l s a n d publications and is a frequent speaker at higher education conferences.

Mr. Goldstein has been named in Best Lawyers in America for Education Law and recognized in Washington, DC Super Lawyers for Schools and Education.

Prior to joining Dow Lohnes, he was Assistant City Administrator and Director of University Relations in the Office of the Mayor of the City of N e w Y o r k , a n d t h e n s e r v e d A s s o c i a t e V i c e Chancellor for Urban and Governmental Affairs and Associate Professor of Urban Sciences at the University of Illinois at Chicago.

Contact Information:

Michael B. Goldstein, Partner Cooley LLP

1299 Pennsylvania Avenue, NW Washington, DC

Office: 202 776 2569

Email: mgoldstein@cooley.com

In contrast to direct assessment,

the broader category of

competency-based education

also includes programs that

are developed by mapping

learning outcomes from

established credit or clock hour

programs or from

industry-based rubrics into the basis

of the competencies that are

then measured and evaluated

by the institution.

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First Steps toward Financial Aid for Competency-Based Education:

1. Determine if the program is direct assessment or a different type of competency-based instructional program.

• The determination of whether a program qualifies as direct assess-ment, or another form of compe-tency-based education, is paramount for institutions to know if the pro-gram will require express approval from the Department to participate in the federal student aid programs, or if the institution is authorized

to establish the program’s eligibility under the traditional Title IV rules. Insti-tutions that err with this decision risk a liability of total repayment of Title IV funds issued for the pro-gram to the Depart-ment. If a program is deemed to be a direct assessment program, then the institution must receive approvals from both its accreditor and the Department to establish the pro-gram’s Title IV eligibility. If the institution deems the program to be competency-based education that is not direct assessment, then the program can be administered under the traditional Title IV rules. • Although the terms,

“competency-based” program and “direct assess-ment” programs are often used interchangeably in articles, training sessions, and even Department guidance documents, in fact direct

assessment programs are a subset of the larger, more diverse category of academic programs that qualify as “competency-based.” Direct assessment programs, for federal student aid purposes, are “in-structional programs that, in lieu of credit hours or clock hours... [utilize] direct assessment of stu-dent learning.” The few direct assessment programs that are currently Title IV eligible can be distinguished from other compe-tency-based education due to direct assessment programs’ development outside of the traditional credit and clock hour construct. Instead of credit hours, these programs focus on identifying the compe-tencies and skills students need to master, as well as the assessments required to document mastery. The direct assessment program is then structured to deliver instruction, assignments and assessments from the foundation of the core compe-tencies. The College for America at Southern New Hampshire Univers-ity’s offerings are well-known examples of direct assessment programs.

• In contrast to direct assessment, the broader category of competency-based education also includes programs that are developed by mapping learning outcomes from established credit or clock hour programs or from industry-based rubrics into the basis of the compe-tencies that are then measured and evaluated by the institution. The identification of competencies and adequacy of instruction to warrant a credential is expressly tied to a traditional credit or clock hour model. Examples of compe-tency-based programs can be found at Northern Arizona University

The need to explain how a

direct assessment program

equates to a credit hour

program has lead institutions

to map what was intended to

be a direct assessment program

to a traditional credit hour

program: effectively changing

the direct assessment program

enough to make it no longer

direct assessment, but rather

a competency-based program

governed by the traditional

Title IV rules.

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and Western Governors University, among others.

Avoid a Misstep – Take the time necessar y to determine whether your institution’s program fits into the traditional or direct assessment Title IV rules.

There are a few reasons why insti-tutions struggle when determining if a program is governed by the traditional or direct assessment Title IV rules. First, what constitutes a “credit hour” for federal student aid purposes was only recently defined to clarify that federal student aid awards could be are based on time (instructional hours) or institutionally-defined equivalencies, such as competencies. The fact that some competency-based education would be governed by the traditional Title IV rules applicable to credit and clock-hour programs was unclear until 2011. With the current definition for a “credit hour” being relatively new, there’s been little time, guidance, or examples of different types of compe-tency-based educational programs that institutions just initiating efforts into developing competency-based education could consider as models. Second, while the federal student aid regulation authorizing direct assess-ment programs for Title IV eligibility makes clear that these programs are not to be measured by credits or clock hours, the regulation also expressly requires institutions to provide a state-ment as to the “number of semester or quarter credit hours that are equivalent to the amount of student learning being directly assessed for the [credential]” and “the methodology the institution uses to determine the number of credit or clock hours to which the program is equivalent.” The need to explain how a direct assessment program equates to a credit hour program has lead institutions to map

what was intended to be a direct assessment program to a traditional credit hour program: effectively changing the direct assessment program enough to make it no longer direct assessment, but rather a competency-based program governed by the traditional Title IV rules. This change from a direct assessment program to a

com-petency-based program can be further exacerbated by the need for direct assessment programs to comply all of the federal financial

aid rules, such standard academic progress (or SAP) and return for Title IV (or R2T4), which are rules tied very closely to time-based measures. These requirements tether the direct assessment programs a credit or close hour structure, despite the intention to free the programs from a time-based limitation, and require institutions to translate students’ pro-gress through the competencies to the traditional time-based measures.

And finally, accreditors have varying approval requirements related to com-petency-based education programs; differing accreditor approval standards can lead schools that initially conceived of their competency-based programs as direct assessment programs to modify their description of the direct assessment program to more closely align it to credit hour programs. In order to obtain accreditor approval in a timely manner, institutions may forego a direct assessment program for a competency-based model and not realize the change to meet their accreditor requirements affects their federal financial aid eligibility.

As an institution works on developing a competency-based program, it is a

Documentation of “regular

and substantive interaction”

policies and activity is

impor-tant to protect the eligibility of

the direct assessment program.

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best practice to have academics and administrators expert in curriculum design, subject matter, financial aid regulation and accreditor standards evaluate the relevant state, accreditor and federal aid requirements at multiple stages of the program’s development and implementation. Shared review will minimize the risk of a costly error, delays and potential liabilities.

Recognizing that competency-based programs require advance approval of the Department, going forward the best practices will focus on the pro-cesses for securing those approvals. For direct

assessment programs, Title IV regulations require institutions submit an application to the Department to establish the direct assessment program’s Title IV eligibility. And prior to applying to the Department for approval, the institution’s accreditor must provide documentation of its review of the institution’s offering of direct assessment program, its agree-ment with the institution’s determin-ation of the direct assessment program’s equivalence with credit hour programs, and that the programs is included in the institution’s grant of accreditation. The following best practices will facilitate this application process.

2. Confirm that the type of program is not ineligible to be classified as a direct assessment program.

While promoting flexibility in program design, the direct assessment regulation does expressly exclude certain types of otherwise Title IV-eligible programs and courses from being eligible when offered in a direct assessment format. The Departmentwill not approve the

following types of programs for Title IV eligibility if offered in a direct assessment format:

• programs at foreign schools, • prepatory education required for

students to enter an eligible program,

• remedial education, or

• courses necessary for teaching credentials outside of a degree program.

Note that the Department will also not recognize a program as direct assessment if parts of the program are offered in credits or clock hours. This limitation can prove significant in states where licensure regulations dictate a completion of a certain number of clock hours of instruction in a related academic program for individuals to qualify for licensure. Seeking eligibility for these types of programs under the direct assessment regulation will result in lost time and energy for institutions. For the type of programs listed above its best to develop competency-based programs aligned with credit hours or simply provide the programs/courses in a traditional credit or clock-hour format.

3. Determine how the institution will document “regular and sub-stantive” interactions between the faculty and students in the direct assessment programs, as well as other financial aid regulatory requirements.

Title IV funds cannot be applied to the assessment of prior learning for students enrolled in direct assessment programs, nor can they be applied to the assessment of competencies where the student did not receive any in-struction from the program that facilitated their attainment of the competency. To show that a direct assessment program meets the eligibility requirements, the institution must

The definition and

document-ation of “regular and

sub-stantive interactions” is one

example of the tension caused

by federal financial aid’s

time-based regulatory structure,

and the competency model.

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document how the institution “assists students in gaining the knowledge needed to pass the assessments,” and that the student, as an individual, “interacts with the faculty member of a regular and substantive basis to assure progress within the course or program.”

Institutions that fail to create a policy that clearly identifies the types of substantive educational activities that will occur between the students and faculty, or fail to retain documentation of these educational activities for each student, will risk significant financial liabilities, up to and including total repayment of Title IV funds distributed to students in the program. The absence of policies and documentation outlining the “regular and substantive inter-actions” occurring between faculty and students in a direct assessment program can lead to the program being deemed correspondence education, and have significant effects on the students’, program’s and institution’s federal student aid eligibility.

Correspondence education, which has unique Title IV eligibility require-ments, is effectively self-paced in-struction, where an institution provides the instructional material to a student, interaction between the student and faculty is limited and often student-initiated. Absent documentation of regular and substantive interaction between the faculty and students, a direct assessment program would be treated as a correspondence education program for Title IV purposes, and if the program did not meet the corres-pondence education eligibility require-ments, it would risk a significant repayment liability. Documentation of “regular and substantive interaction” policies and activity is important to protect the eligibility of the direct assessment program.

While it is counter-intuitive that direct assessment programs, which are valued for the autonomy they allow students to self-direct their

learning pace and to show mastery of various topics without redundant work, would require documentation of regular and substantive interaction throughout the whole of the program, it is an express requirement for receiving and retaining Title IV eligibility. Defining what constitutes “regular” interactions when one enrolled student spends ten

hours a day on their academic program and another student spends two hours, but is able to show mastery of the same competencies can be a significant

challenge for some programs. Definitions of what constitutes a regular and a substantive interaction are included in both the definitions of direct assess-ment programs and distance education, but the institution has some discretion in defining how these terms are applied to its own direct assessment program, so long as that definition is deemed acceptable to the Department when the institution submits its application. The definition and documentation of “regular and substantive interactions” is one example of the tension caused by federal financial aid’s time-based regulatory structure, and the com-petency model.

The Department is working with institutions individually, based on the specifics of the direct assessment program, to review the proposed policies and procedures to ensure compliance with all of the federal financial aid requirements that contain a time-based element, such as SAP, R2T4, and student eligibility requirements. This is not an insignificant review which can take several exchanges between the institution and the Department. To facilitate this review, it is the responsi-bility of the institution to define and articulate how its direct assessment program’s policies and procedures

While the path to establish a

direct assessment program’s

Title IV eligibility remains

complex and still rather murky,

it can be traversed successfully,

one step at a time.

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comply with all of the various time-based federal financial aid rules. Again, successful articulation of these policies, how they apply to the academic pro-gram and how they comply with the federal regulations will require the collaboration of academic and admini-strative leadership from the earliest stages of the program’s development.

4. Bring Both Academic and Financial Aid Leaders to the Planning Table Early and Often.

Expertise on translating direct assessment programs to the federal financial aid regulatory requirements is not readily available on every campus. As institutions begin to explore devel-oping competency-based educational offerings, it is imperative that they bring both academic and financial aid leaders to the planning table to assess how the program’s goals can be met while complying with the proper financial aid eligibility regulations. The experience and expertise of both academics and administrators is necessary ensure the steps necessary to minimize the cost and frustration of lost time and misdirected efforts.

Institutions developing competency-based education are further encouraged to get involved with, or otherwise monitor the publications being devel-oped by various professional associ-ations, such as the Council for Adult and Experiential Learning (CAEL), pro-fessional journals, and through the Competency-Based Education Network (“C-BEN”), which is supported by grants from the Lumina Foundation. C-BEN is supporting institutions developing competency-based programs so that they can build guiding principles as a collective, sharing information on each program’s strengths and successes. C-BEN is closely aligned with an “in-cubator” project, funded by the Bill & Melinda Gates Foundation, which

supports the development of com-petency-based education programs that are not as developed as those participating in the Lumina funded C-BEN initiative. Foundational materials, such as the Department’s “Dear Colleague Letter” that details the infor-mation required for an application for Title IV federal student aid eligibility for direct assessment programs should be reviewed early, and often.

After waiting forty years, the Congress recognized that there may be better and more economical ways to convey learning to the American people than sitting in a classroom in 50-minute bites. And it only took the Department seven more years to actually act on this authority. But act it has, and there is now, finally, the opportunity for insti-tutions to develop competency-based education programs. The initial success of Southern New Hampshire University’s College for America (which had its first associate degree student graduate in less than one hundred days), and those of other competency-based programs that are reporting substantial success with degree completion initiatives that are responsive to the students’ pace of learning, coupled with increasing concern about the cost of higher education, has created significant political, financial and popular support for these initiatives. It is therefore important that excellent competency-based programs be made available to the largest population possible, and that demands establishing their Title IV eligibility so that students with financial need are not effectively excluded. While the path to establish a direct assessment program’s Title IV eligibility remains complex and still rather murky, it can be traversed successfully, one step at a time.

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