Regulatory Guidance from the Federal Government

March 20, 2020. In light of the unprecedented challenges caused by the COVID-19 emergency, the Federal Government has taken significant steps to provide information to the public. Among the most comprehensive sources of information are sites maintained by the Centers for Disease Control and Prevention and by USA.gov.

In addition to this general information, several agencies have provided guidance specifically addressing the impact of the COVID-19 emergency on higher education. As institutions review this guidance, it is important to recognize that the situation is very fluid, with new guidance in many of these areas expected in the coming days and weeks. Institutions are strongly advised to thoroughly document all decisions they are making to deal with COVID-19, including explaining the rationale for their decisions and retaining any guidance or information on which they relied for such decisions.

U.S. Department of Education

U.S. Department of Education (the “Department”) has issued guidance and provided resources to assist colleges and universities, students, faculty and staff, and accrediting agencies in dealing with COVID-19 challenges. The Department has stated that its goal is to help institutions “accommodate students and help them continue their education despite interruptions caused by COVID-19.” To help achieve its goal, the Department has established a dedicated webpage to provide the most current information available for institutions. We encourage you to visit this site regularly.

On March 5, 2020, the Department issued its initial guidance for higher education institutions contemplating or experiencing interruptions in their operations, including the cessation of normal classroom instruction. The Department addressed several different COVID-19 scenarios that could prompt questions or concerns regarding Title IV requirements, including:

• • A student in a study-abroad program was either unable to begin the experience or has been called back to the United States.

• • A full-time student has fallen below the 12-credit requirement for full-time status because some or all of the student’s classes have been canceled.

• • A student misses classes because of quarantine or incapacitation.

• • A campus temporarily suspends on-ground or face-to-face instruction.

• • A foreign campus servicing Title IV-participating students temporarily suspends operations.

In each of these scenarios, the Department has outlined guidance intended to provide institutions with maximum flexibility within the parameters of its statutory authority. For example, the Department offered broad authority to institutions to move instruction temporarily to a distance education online format without first obtaining any Department approval that might typically be required. Although the Department initially determined that this approval applied only to students who were already enrolled as of March 5 and covered only the payment period that includes March 5 and the subsequent payment period, the Department amended its March 5 guidance on March 20 with a set of FAQs, the first of which confirms that the Department has extended this approval for payment periods that begin on or before June 1, 2020, including for new students.

An institution considering moving to distance education delivery must understand the Department’s requirements for distance education. Although the March 5 guidance noted that “distance learning does not require the use of sophisticated learning management systems or online platforms,” institutions nevertheless must ensure that instructors are “initiat[ing] substantive communication with students, either individually or collectively on a regular basis.” This communication must utilize technology, which may include email, online chat features, conference calls, and electronic submission of coursework. But, to reiterate, there must be regular and substantive communication initiated by the instructor.

In addition to accommodations to institutions, the Department also granted accrediting agencies flexibility beyond the normal agency recognition requirements to waive some of their requirements for reviewing and approving distance education programs. It is important to note, however, that the Department does not mandate that accrediting agencies exercise this flexibility, and we urge institutions to monitor and review their particular accreditor’s announcements in this regard.

Finally, the Department described the flexibility that institutions have regarding certain Title IV processing issues. Specifically, the Department discussed leaves of absence, the temporary use of non-standard terms, federal work study payments, potential changes to the academic year, professional judgment, satisfactory academic progress, attendance and Return of Title IV funds policies, enrollment status changes, and NSLDS reporting.

On March 12, the Department’s Student Privacy Policy Office issued a memorandum addressing Frequently Asked Questions regarding compliance with the Family Educational Rights and Privacy Act (“FERPA”) in the COVID-19 context. The memorandum describes institutions’ obligations with respect to protecting students’ educational records and personally identifiable information under FERPA.

On March 18, the Department’s Office for Civil Rights (“OCR”) released guidance reminding institutions of their obligations to protect students’ civil rights and to take steps to prevent and address allegations of discrimination during the COVID-19 emergency. Institutions specifically are advised that they have an obligation to ensure that any distance education or online activities are equally accessible by students with disabilities, in accordance with both Section 504 of the Rehabilitation Act of 1973 and Title II of the Americans with Disabilities Act of 1990. OCR also released a short webinar outlining its expectations in more detail.

U.S. Department of Veterans Affairs

The U.S. Department of Veterans Affairs (“VA”) has provided somewhat limited information thus far regarding the impact of COVID-19 on veterans’ benefits and the delivery of instruction to veterans, in part because of statutory requirements that it has no authority to modify. The VA’s Education and Training webpage provides links to some guidance, including a March 12 Facebook post regarding the impact of the COVID-19 emergency on housing allowances. In addition, there are reports that the VA will be issuing further guidance in the very near future, including information regarding congressional action taken as recently as March 19 that will impact veterans’ benefits and housing allowances.

U.S. Department of Homeland Security

The U.S. Department of Homeland Security’s Student and Exchange Visitor Program (“SEVP”) has issued guidance regarding the interruption of instruction for holders of student visas. On March 9, SEVP provided a Broadcast Message advising institutions that they may need to revise their administrative policies and procedures to deal with the impact of COVID-19 on holders of F-1 and M-1 student visas, including in instances where instruction is interrupted or moved online. SEVP waived the requirement that it receive prior notice of such changes, but it advised institutions that they still must report changes within 10 business days. The notice indicated that SEVP will be flexible in handling these changes, but it noted that the provisions apply only to students currently enrolled in a program of study and not to new students outside the United States.

SEVP supplemented the Broadcast Message with additional guidance on March 13. This supplemental information also indicated that SEVP continues to monitor the situation and will provide additional or revised guidance as warranted.

Maynard has a deep bench of attorneys experienced in all regulatory and operational aspects of higher education, including federal and state oversight and accreditation matters, employee and benefits issues, and real estate concerns. In this unprecedented time of turmoil and uncertainty, we stand ready to help institutions of higher education navigate the challenges and come through the crisis. Please contact us regarding any COVID-19 or other issues you wish to discuss.

Roger Swartzwelder advises regionally and nationally accredited institutions of higher education regarding legal, administrative, regulatory and accreditation matters.

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