Federal Policy Updates Impacting Online Learning

Since the beginning of the Biden administration, there have been consistent efforts to address concerns over student loan debt. The U.S. Department of Education (ED) has approached this concern both by exploring new repayment options for existing borrowers and by attempting to strengthen consumer protections for future borrowers. While ED’s primary concerns appear to lie with the for-profit sector, public and nonprofit institutions have also been impacted by the resulting regulations and guidance. And as this article highlights, the impact on online learning, regardless of sector, has been particularly significant. Meanwhile, website and online course accessibility has been another major focus area in 2023 for ED, with the Department of Justice (DOJ) joining in as well as leading its own policy changes in this particular area. In addition to administrators, online course instructors and design teams need to be familiar with some of these major shifts to the regulatory landscape.

OPMs and Software Providers

What changes might we anticipate to our ability to procure software or partner with third parties when offering online programs? 

On February 15, 2023, ED announced new guidance concerning Third-Party Servicers (TPS)–which has since been withdrawn pending revisions–and signaled it would also be reviewing the “bundle of services” exception to an ban on incentive compensation that is commonly used by Online Program Managers (OPMs) to share online course revenue with partner institutions. While neither announcement has materialized in actionable rule changes or formal guidance just yet, it may be worth assessing the reliance a program or course may have on third-party partnerships involving the “provision of educational content and instruction” in connection with a Title IV program. 

ED has stated that the “effective date of the revised final guidance letter will be at least six months after its publication, to allow institutions and companies to meet any reporting requirements.” Any new audit and contractual requirements would not take effect until the following fiscal year. However, starting to create an inventory of potentially impacted partnerships and learning software now may prove valuable for meeting whatever future deadlines are announced. It is also important to exercise caution when considering new partnership opportunities that could be impacted.    
This Center for Academic Innovation (CAI) Advisory Note provides more information regarding both the proposal to expand the TPS definition and the current (and potential future) state of revenue sharing with OPMs.

Student-Consumer Protections

To the extent online instructors and design teams are involved in recruitment efforts, drafting language for syllabi and course description materials, or contributing to marketing materials, the rule changes below may be particularly important. 

In addition to state-by-state consumer protection remedies, students and prospective students Federal student loan borrowers are able to have some or all of their loans discharged if ED believes their institutions misrepresented information about an academic program (e.g., its cost or academic or career benefits) and the borrower experienced harm as a result. ED can then recover that amount forgiven from the institution. A revived and strengthened Borrower Defense to Repayment (BDR) rule took effect on July 1, 2023. Due to a court order, however, claims brought under the new rule cannot be adjudicated by ED, at least temporarily, pending the court reaching a decision on the merits of the case. Regardless, claims continue to be filed and should not be ignored, particularly as complaints can still be processed through either the 2016 or 2019 versions of the BDR rule, depending on when ED received the application. 

Best practices for preventing a BDR claim include: 

• Carefully reviewing course/program descriptions and syllabi for accuracy; 
• Avoiding language that could suggest any career or salary is guaranteed (as well as forwarding career questions to career services units whenever appropriate);
• Being transparent about any known limitations of the course or program in consideration of the expressed goals of the individual student and ensuring all required disclosures are shared;  
• Redirecting any financial aid or program cost questions to financial aid units; and 
• For programs leading to professional licensure, ensuring any state-by-state research into (and corresponding disclosures for) whether programs will satisfy educational requirements in other states remains up to date. 

While any claims shared with the institution by ED should be routed to general counsel, it is important for all faculty and staff to keep records of communications with students and prospective students involving future career pathways, program costs, etc. and to be responsive to general counsel as they work to investigate claims under potentially tight timelines for submitting a response.  

Digital Accessibility

On May 19, 2023, ED and the DOJ, through their respective civil rights divisions, issued a joint Dear Colleague Letter that summarized recent online accessibility enforcement actions taken against institutions of higher education. These agencies took the opportunity to also remind institutions of higher education about their existing obligations to ensure individuals with disabilities are given equal opportunities, including as part of online activities, under both the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act (Section 504), and issued the following warning:

Online accessibility for people with disabilities cannot be an afterthought. The Justice

Department and Department of Education will use the ADA and Section 504 as tools to ensure that members of the disability community are able to fully participate in every education program.

The letter also stated that each agency would separately pursue rulemaking on the topic of digital accessibility as part of implementing regulations for these same statutes. While ED has not yet released proposed rules as of the time of this writing (updates can be followed in the Unified Agenda, under Section 504 in this case), the DOJ has moved forward and published proposed changes under Title II of the ADA, which applies to public institutions. The rule, as proposed, would formally adopt the Web Content Accessibility Guidelines (WCAG) 2.1 AA as a standard used to demonstrate accessibility compliance. This is the same standard adopted by the University of Michigan as part of technical guidance for its Electronic and Information Technology Accessibility SPG. 

With regard to educational programs, specifically, the DOJ is proposing a distinction be drawn between public and “password protected” web content. While courses open to the public, such as Massive Open Online Courses, or MOOCs, would need to conform with WCAG 2.1 AA from the start, “closed” courses offered to enrolled students would not necessarily need to conform with these guidelines unless or until it becomes known that a registered student with a disability would otherwise have trouble accessing the content and fully participating in the online course. If this is not something known prior to the term’s start (in which case the course needs to be compliant as it launches), the institution would have five business days to complete the necessary remediation work.  

Again, this rule is not yet final and changes could still be made. However, it should also be noted that the DOJ and ED have regularly cited WCAG as part of lawsuits and agency enforcement actions and in resolution agreements. These agencies may continue to do so regardless of whether these rules take effect as written but the codification of WCAG into ADA implementing regulations would certainly add more weight to this approach to enforcement. 

Finally, conformance with WCAG 2.1 AA does guarantee compliance with the ADA or Section 504. It will remain important to work with disability services units and provide appropriate accommodations even when online course materials might be considered “accessible” under these guidelines. More information on this topic, including online course accessibility resources, can be found at U-M’s Accessibility website and on CAI’s Accessibility and Accommodations for Students with Disabilities webpage.