A Matter of Kind, Not Degree
Addressing the arguments that 'not much has changed' with TPS guidance
On the off chance that you’re just getting introduced to the TPX expansion topic at hand, read the initial coverage, follow-up post, Q&A for premium subscribers, and description of the delay in guidance.
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On to the update.
By reading the actual delay in guidance text from the US Department of Education (ED) as well as public commentary from the advocacy groups who inspired the TPS expansion, it is clear that one of their primary responses to the growing pushback is that not much has changed, it’s just that people ignored previous guidance.
In the updated guidance that changed the effective date to September 1st:
Clare McCann, formerly with ED and currently with Arnold Ventures, which is likely the leading advocacy group driving these changes, share a Twitter thread this week that attempted to argue the no big change viewpoint.
For instance, you might have seen a piece from @chronicle citing ed-tech vendors in a tizzy. But as @stephmhall explained (), the new language on computer services that are TPS activities (1st pic) is really just a clarification of a 2016 DCL (2nd pic). 3/
— Clare McCann (@claremccann)
Feb 28, 2023
From the referenced Stephanie Hall Twitter thread
When I did a side-by-side comparison of the new guidance to these past iterations, I found most passages were identical. Could it be that many vendors chose to narrowly interpret the guidance as applying only to financial aid, and schools trusted their word? I think so.
— Stephanie Hall (@stephmhall)
Feb 24, 2023
This argument is more than just a reaction to the pushback, it represents the thinking behind the vast expansion of TPS classification and should be examined.
It’s worth starting with the actual definition of third-party servicer contained in the original HEA federal law.
“Any Title IV, HEA program” is the important phrase, and it is key to understand that in the US, higher education is not the direct responsibility of the federal government, as ED describes:
The federal government’s role in higher education is relegated to several areas, and perhaps the most important is the organization and provision of financial aid. That it what Title IV is all about.
“Title IV programs” refers to specific financial aid mechanisms, such as:
Until February 15th, the common understanding of HEA’s definition of TPS as administering any aspect of a Title IV program as just that - directly working on the financial aid. The best source I’ve seen for describing what this means lists these examples:
Everything in this list directly relates to handling federal financial aid or direct reporting of that financial aid. And this has been the common understanding until February 15, 2023. Where did I get that list? The very data form that ED is asking vendors to submit under the new guidance. The one that ED never thought to update based on the new guidance.
With the release of the new Dear Colleague Letter 23-03 on February 15th, ED used a rhetorical device of adding one bullet to the guidance that is short in word count but enormous in implications. [emphasis added]
That bold bullet “To provide Title IV-eligible educational programs” is the change. Now programs refers not just to financial aid programs (e.g., Stafford loans) but also to educational programs (e.g., online MBA), an entirely different beast. This phrase has never been in previous ED guidance, and with it, ED now includes learning management, instruction, student retention, basically anything that ED wants to consider as necessary for that educational program.
Before, an LMS vendor never dealt with student eligibility for financial aid, never administered or even reported on distribution of funds, or had any part of Title IV programs. But an LMS vendor does help an institution provide educational programs. So do SIS, retention, video conferencing, CRM, and almost any other EdTech vendors. All from that one injected bullet that changed the entire meaning and purpose of TPS.
In the table on Computer Services / Software, the above bullet allows ED to add this entirely new section on what “activities, functions, services, or roles in this column ARE considered an aspect of an institution’s participation in a Title IV program”:
McCann’s claim that “the new language on computer services that are TPS activities (1st pic) is really just a clarification of a 2016 DCL (2nd pic)” is absurd.
The changes of the new DCL 23-03 represent a difference of kind, not degree.
What if ED had limited its expansion of TPS guidance to include just direct student recruitment, particularly if a third party was compensated for that recruitment through a tuition revenue sharing agreement? That would have been defensible, whether or not it would be good policy. By recruiting an individual student to a specific program at a specific school, the third party is making a judgment on whether that student qualifies for a loan or grant program and therefore would be likely to enroll. You could qualify for a loan to cover your costs. Please apply here.
Adding student recruitment would have been a difference of degree and defensible.
But ED chose a completely different approach by adding that one bullet, changing the entire scope of TPS guidance and pulling in the majority of the EdTech industry AND course and services-sharing collaborations between institutions.
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