Interpreting What is Required for "Regular an Substantive Interaction"

Originally posted on September 30, 2016 at WCET Frontiers

As greater numbers of students move into online and competency-based education programs, we have seen new interest in understanding the Department of Education’s regulations. In particular, faculty and administrators seek to understand how the Department interprets rules requiring courses to include “regular and substantive interaction,” especially in distance and competency-based education.

Those of us in online education have long known that interaction between faculty and students as well as among students in both online and face-to-face courses can be the difference in whether a course is a quality learning experience. In fact, ensuring meaningful interactions among class participants should be a priority for any modality—be it face-to-face or online.

A traditional view of student-teacher interaction.

Unfortunately, there continues to be a great deal of confusion around how the Department of Education’s Office of Inspector General narrowly defines “regular and substantive interaction.” The purpose of this post is to outline our best interpretation of what the Department expects of accrediting agencies, institutions, and faculty in complying. In a follow-on blog post, we will provide opinions about the regulation and how it might be improved.

What sources did we use for this post?

Faculty and administrators have been charged with assuring compliance with “regular and substantive interaction” Expectations. Unfortunately, guidance has been spotty. By reviewing the actions and communications over the last several years, we have come to better understand what is intended and the changing nature of what is expected of institutions offering federal financial aid. We reviewed and often quote from the following official U.S. Department of Education documents:

Based on these documents, this post is our interpretation of what colleges are expected to do in providing and documenting such interaction.

What is the origin of the “regular and substantive interaction”?

The origins of “regular and substantive interaction” go back to an expansion of federal financial aid eligibility in 2005 (see page 6 of the St. Mary-of-the-Woods Final Audit). When  “telecommunications in courses” became eligible for federal financial aid, the term “regular and substantive interaction” was included in the definition.

Prior to 2005, there had been cases of substantial fraud in correspondence studies and there was great interest in severely limiting aid eligibility for correspondence courses. The hallmark of correspondence courses was interaction on the student’s schedule and therefore not on a regular timeline as one might find in a traditional classroom. The term “regular and substantive interaction” was included to help differentiate distance from correspondence courses. From page 6 of the St. Mary-of-the-Woods audit report where a “telecommunications course” was the precursor to what is now defined as a distance education course:

“Effective September 8, 2006, a telecommunications course also needed to include ‘regular and substantive interaction between these students and the instructor.’ (71 FR 45666 (August 9, 2006. ‘Interim final regulations implementing the Higher Education Reconciliation Act of 2005’)).”

When “telecommunications courses” were later defined as “distance education,” the phrase was ported to that new definition, which is the one currently in use:

“Distance education means education that uses one or more of the technologies listed in paragraphs (1) through (4) of this definition to deliver instruction to students who are separated from the instructor and to support regular and substantive interaction between the students and the instructor, either synchronously or asynchronously…” (underlining added)

In recent years, the expectation for “regular and substantive interaction” has been expanded to competency-based education (CBE) as well. In the Department’s December 2014 Dear Colleague letter stated:

“All Title IV eligible programs, except correspondence programs, must be designed to ensure that there is regular and substantive interaction between students and instructors.”

Since “regular and substantive interaction” is specifically used in the definition of “distance education” and is not in regulatory language for other types of instruction, we are unclear why it would also apply to face-to-face CBE programs. A request to the Department for how enforcement of “regular and substantive interaction” was expanded to cover CBE has not been answered.

Who are the players in this discussion?

Here is a brief explanation of a very complex set of players and interactions, which include the following:

  • Congress and the President. Congress proposes and approves bills that include regulatory language. A bill passed by Congress and signed by the President becomes law. Typically, many of the higher education regulations (such as “regular and substantive interaction” help define eligibility for issuing federal financial aid.)
  • Department of Education. The Department enforces laws and regulations that are under their charge. Laws rarely include every detail about how it is to be enacted, so the Department will often create additional regulations that meet the Congressional intent. These regulations are subject to an extensive public comment period. Once regulations are set, Departmental staff conduct reviews and audits of institutions to assure that they are in compliance.
  • Department of Education Office of Inspector General. The OIG is an arm of the Department with the mission: “To promote the efficiency, effectiveness, and integrity of the Department’s programs and operations, we conduct independent and objective audits, investigations, inspections, and other activities.” The OIG is increasingly concerned about fraud and the misuse of federal aid funds by institutions of all types. After auditing Departmental activities, the OIG issues recommendations that the Department does not necessarily have to follow. The Department is expected to provide a response as to how it will implement the recommendations or why it will not do so. Congress is copied on this correspondence.

Again, these regulations are usually about expectations on institutions to remain eligible for federal financial aid. We need to closely watch these actions to remain in compliance.

What are the elements of “regular and substantive interaction”?

The interpretation seems to have evolved over time. From Russ’s analysis in 2011 of the St. Mary-of-the-Woods audit report, the auditors seemed to focus on the lack of use of technologies (a cornerstone of the distance education definition) in many of their courses. Additionally:

 “The Audit found that ‘instructors did not deliver lectures or initiate discussions with students. Tutoring and other instruction resources were provided at the student’s discretion.”

For that audit review, there was much focus on the interaction being self-paced and initiated by the student. Over time, additional interaction criteria were outlined.

There now seem to be four criteria that the Office of Inspector General is expecting in a course for it to be considered as meeting their expectations for interaction:

1) Interaction must be initiated by the instructor.
This criterion is not written into the original definition of distance education, but (as cited above) we find it in the audit of St. Mary-of-the-Woods. The following statement is made in the December 2014 Dear Colleague letter:

“We do not consider interaction that is wholly optional or initiated primarily by the student to be regular and substantive interaction between students and instructors.  Interaction that occurs only upon the request of the student (either electronically or otherwise) would not be considered regular and substantive interaction.”

This is an attempt to differentiate distance education from correspondence study. Students taking correspondence study proceed at their own pace and return assignments when they complete them. In correspondence courses, “interaction” (questions, papers, or assessments) is initiated by the student and the faculty responds. It is thought that in the traditional and distance course that the faculty member guides the flow of events by initiating a lecture or other learning activities.

The emphasis on the primacy of faculty is heightened in the WASC audit. Whereas, most prior documents talked about “regular and substantive interaction”, the WASC audit repeatedly uses the phrase “faculty-initiated, regular, and substantive interaction”.

2) Interaction must be “regular” and probably somewhat frequent.
Unfortunately the two criteria that are less defined are the two terms “regular” and “substantive.” They seem to feel the words stand by themselves, as witnessed in the December 2014 Dear Colleague letter that merely says that “the interaction is regular”.

Our best clues about “regular” is in what it is not. The Department seems to be defining “regular” as not self-paced. Myk Garn, University System of Georgia and member of the Competency-Based Education Network board, addressed this issue in his recent post on why we should stop using “self-paced” in CBE descriptions.

In the December 2014 Dear Colleague letter, in response to the question “Does each student have to engage in educational activity every week in a CBE program?”, the Department responded:

“While it is expected that students will generally be academically engaged throughout an educational program, there is no requirement that the institution be able to document academic engagement for each student for every week of instructional time.”

“However, institutions must ensure that the instructional materials and faculty support necessary for academic engagement are available to students every week that the institution counts toward its definition of a payment period or an academic year.”

We see some further evidence in the WASC audit, which on page 7 in critiquing an offending program states: “Interaction between the instructor and the student is limited, not regular and substantive, and primarily initiated by the student.”  The word “limited” seems to add some sense that there is not an opportunity for extensive interaction, but that is just our guess.

The audit of HLC also cites an institutional substantive change application to the accrediting agency. The audit cites HLC as falling short when addressing the coaches and subject matter experts used as part of CBE instruction. On pages 9 and 10, the audit notes that “coaches would connect with students once each week, on average, and serve as academic advisors, coaches, and mentors” and that “the application did not indicate whether students would regularly interact with subject matter experts if the students were not struggling.” This gives us a hint that the faculty person should be interacting with all students on a “regular” basis.

Our interpretation is that the expectation is that the instructor is expected to interact with students on a fairly set schedule and that those communications not be too far apart. As noted in Russ’s blog on St. Mary-of-the-Woods, there is much speculation about the required frequency, but little guidance. In seeking guidance, we are in the “be careful what we ask for” dilemma. Without Departmental guidance, we don’t know how to comply. On the other hand, guidance may result in expectations that do not work in every setting.

With spotty guidance from the Department on what constitutes “regular” interaction, let’s look at how Merriam-Webster defines the word as:

  •  "Happening over and over again at the same time or in the same way: occurring every day, week, month, etc.
  •  Happening at times that are equally separated
  • Happening or done very often.”

That might be as good as it gets and all we need.

3) Interaction must be “substantive” – of an academic nature.
In dealing with other financial aid issues, we believe that “substantive” is the easiest to understand as the Department tends to favor activities that further learning or assessment of learning over organizational or procedural communications. In the December 2014 Dear Colleague letter, in question 8 they outline “educational activities” as follows:

“For all CBE programs, including direct assessment programs, educational activity includes (but is not limited to):

  • Participating in regularly scheduled learning sessions (where there is an opportunity for direct interaction between the student and the faculty member);
  • Submitting an academic assignment;
  • Taking an exam, an interactive tutorial, or computer-assisted instruction;
  • Attending a study group that is assigned by the institution;
  • Participating in an online discussion about academic matters;
  • Consultations with a faculty mentor to discuss academic course content; and
  • Participation in faculty-guided independent study (as defined in 34 CFR 668.10(a)(3)(iii).”

“For direct assessment programs only, educational activity also includes development of an academic action plan developed in consultation with a qualified faculty member that addresses competencies identified by the institution.”

“Note that not all of the educational activities described above fulfill the requirements for regular and substantive interaction between students and instructors, as described in Q&A #9 below.”

While they added that last caveat, unfortunately they did not identify which activities meet the “regular and substantive interaction” requirements. But they do add that “merely grading a test or paper would not be substantive interaction.”

As to the other items in the list above, we believe that those activities would also have to meet the other “regular and substantive” criteria. For example a study group that does not include the instructor would not count. Which leads us to the fourth criteria….

4) Interaction must be with an instructor that meets accrediting agency standards.
This is a criterion that was not in the St. Mary-of-the-Woods audit, but appears to have been added more recently. There is a legitimate concern that an unscrupulous institution would hold classes with unqualified personnel. The requirement is outlined in the December 2014 Dear Colleague letter in the answer to question 10:

“Some institutions design their CBE programs using a faculty model where no single faculty member is responsible for all aspects of a given course or competency.  In these models, different instructors might perform different roles: for example, some working with students to develop and implement an academic action plan, others evaluating assessments and providing substantive feedback (merely grading a test or paper would not be substantive interaction), and still others responding to content questions.”

“Such a model may be used to ensure regular and substantive interaction between students and instructors.  However, in applying such a model, an institution must ensure that the interaction is provided by institutional staff who meet accrediting agency standards for providing instruction in the subject matter being discussed, that the interaction is regular, and that the amount of faculty resources dedicated to the program is sufficient in the judgment of the accrediting agency.  Interactions between a student and personnel who do not meet accrediting agency standards for providing instruction in the subject area would not be considered substantive interaction with an instructor.”

Many CBE programs have employed academic coaches or mentors. Some use highly-trained personnel while others may use upper division students. On page 9 of the HLC audit, the OIG voices its concern by citing HLC’s own Elements of Good Practice:

“While mentors or counselors may have an important role in direct assessment competency-based programs in supporting or assisting students, they should not replace faculty or instructors with subject-matter expertise.”

In sum, on the four criteria…

It appears that the Office of Inspector General, is drawing a strong distinction between instructional activities and other student support activities regardless of whether or not those activities play a role in student retention and success.

What’s the financial aid impact?

From 102(a)(3)(B) of the Higher Education Act of 1965:

“An institution shall not be considered to meet the definition of an institution of higher education in paragraph (1) if such institution— …enrolls 50 percent or more of the institution’s students in correspondence courses (excluding courses offered by telecommunications as defined in section 484(l)(4))…”

An institution that is completely CBE or distance education needs to make sure that it meets the “regular and substantive interaction” requirements or risk losing all of its federal financial aid.

For institutions that have only a few CBE or distance education programs, they need to be aware of this statement from page 6 of the HLC audit:

“…students enrolled only in correspondence programs may receive only a half-time Federal Pell Grant award (34 C.F.R. § 690.66), and a school may not award Title IV funds to any students if more than 50 percent of its courses are correspondence courses or if 50 percent or more of its students are enrolled in correspondence courses (34 C.F.R. § 600.7(a)(1)).”

In talking to Joan Berkes of the National Association of Student Financial Aid Administrators, there are many implications to aid eligibility when an institution and/or a student is participating in courses that have been deemed correspondence. For institutions that are not completely CBE or distance learning, you may still be able to grant aid, but the complexities grow immensely.

How sure are we? Here’s our caveat emptor…

This document is our interpretation. It reflects our best understanding based on the documents we cited. Any action that you take based on this information is at your own risk.

What’s next? Do we agree with all of this?

Veterans of the distance education wars have been struggling with the Department’s “regular and substantive interaction” regulations for over a decade as well as the pervasive myth that online education cannot also be quality education. The recent widespread conversations about competency-based education and the explosion in the number of institutions developing and offering CBE has drawn more attention to these regulations, the confusions around them, and institutional struggles to comply with the letter of the law while upholding the spirit of innovation. Further complicating the conversation are the valid and important concerns about ensuring quality and protecting students in a time highlighted by some very large and well-publicized institutional closures have left students stranded with no degree, no job prospects, and significant amounts of student debt.

Because of the complexity of this topic, this first post was meant to be an analysis of the state of this regulation. We tried to hold opinions to the availability or clarity of the guidance provided by the Department thus far.

In our next post we will talk about the intersection between the current conversations around access, quality, and consumer protection. We will suggest a pathway forward that will allow everyone to ensure that our students have improved access to high quality, affordable education that meets their needs.