 Good afternoon, everyone. I want to thank you all for attending our webinar today. My name is Heather Blicker, and I'm the program director for the Community College Consortium for OER with Open Education Global. I'm very pleased to introduce this webinar today, updates on the U.S. Department of Education's negotiated rulemaking for automatic billing. This webinar is for the CCC OER community, and we invite that community to post your questions in the chat throughout the webinar, and we'll do our best during the question-and-answer period to address all of them. Before we do introductions, just a few quick words about CCC OER. It's a community of practice with over a hundred members in 35 states in both the U.S. and Canada. We provide resources, support, and opportunities for collaboration in all things OER for the community and technical colleges through webinars like this one, and we maintain an active community listserv, which is how we first found out that there was a lot of interest in this topic. If you're interested in learning more about the benefits of your institution becoming a member, we will share details later, but I hope you will join us on Friday for a members and benefits panel at 12 p.m. noon Eastern Time with the moderator and panelists all being members of our Executive Council. Our presenters today are Nicole Allen, Director of Open Education for SPARC, and Liliana Diaz, Senior Policy Analyst at WICCHI. And with that, I will hand it over to our presenters. Thank you so much. We're excited to have you all here. Nicole and I are excited to share a little bit more about the negotiated role-making process, and then she'll talk a little bit about automatic textbook billing and what the department is proposing. So if we go on to the next slide, we thought we'd share the agenda with you, which we're going to cover a little bit about what is negotiable making. I know this is kind of an obscure topic that not many of us were familiar with or are familiar with. And then Nicole's going to talk about automatic textbook billing and what is the current regulation, as well as what are the provisions being proposed by the department. And then I will talk a little bit about where do things go from here. So what is negotiable making? Like I mentioned, it's somewhat of an obscure process, so we want to share a little bit more of what that is. So negotiable making is a process that the Department of Education uses to develop existing or proposed new regulations. It is required under the Higher Education Act. And it does, it is a process that is required for any financial aid title 4 programs or any updates to those type of programs. And the department forms a negotiated committee of stakeholders that represent the higher education community. So these could be community college leaders, for-profit institutions, four-year universities, you know, students as well as I think civil rights can be represented as well. So it tries to cover the gamut of who would be impacted by any of the provisional updates or changes to anything that exists. So they'll invite negotiators to be part of that committee so they can share their expertise on the topic and debate, you know, the merits or any effects that should be made to any provisions that are suggested by the project. So what does the process look like for negotiable making? So the committee usually meets to discuss issue papers that are developed by the department. And they talk through what those issue papers include as well as, you know, language that they would like to see changed or incorporated or eliminated from the proposed language. They do have to develop consensus on the draft language. And if it is reached, then it moves forward. However, if no consensus is reached among the negotiators, then the department has the option to write its own language or not move the provisions forward. Additionally, there is a public climate period. So the public does have an opportunity to share their thoughts on any of the provisions that have been put forth by the department through what they call a notice for proposed rulemaking or NPRN. And so they do have those opportunities for the public to speak on any of the provisions that the committee has submitted. Then the department takes all those public comments, they review them and then they draft its final ruling. And then the final ruling is published with an effective date and that is specified. And if we go on to the next slide, it will talk a little bit about the timeline. So right now is negotiable making season. So it usually starts in January and goes through March. So right now we're actually looking at concluding the negotiable making process. And it will take a couple of months for them to process all the materials, all the feedback from the public, as well as the negotiators. However, they could decide not to move forward with a particular commission. The public comment period is usually about 30 days. And then final rules are then published November 1 of the year that the negotiable making will take place with an effective date of July 1 for the following year or sometimes the earliest is usually like a year or two out. So for this negotiable making process it would be July 1 of the year. So they are currently in the last week currently and then the public comment is happening, I think later this week as well. All right, I think that's over to me. So thanks so much, Liliana, for that introduction. It's been a very interesting process so far and it is one of those things that you don't necessarily even know about until it's happening. So, you know, we've all certainly on my side of things at Spark been working really hard to become experts at a lot of things really quickly to understand, you know, what's going on with these regulations and this whole process. So happy to be here to share some of that with you. So before we dive into talking about the specific regulations we're talking about, I do just want to quickly take a moment to make sure we're all in the same about what, same page about what automatic textbook billing is because we'll use different terminology. So, you know, currently automatic textbook billing is a model used at a lot of college campuses to add the cost of digital course content into students tuition and fees. It's implemented in a couple of different ways, depending on the campus. The most common model or what we would call like standard inclusive access is where it's a course by course situation where students and participating courses are going to get charged for the cost of their digital materials through tuition and fees unless they opt out. But students, you know, and not taking those classes are not going to face any charges and buy their textbooks in the old fashioned way. And then the second model that we see is the flat fee model or so called equitable access program that was relatively uncommon until recently where a lot of campuses, particularly with outsourced bookstores to Barnes and Noble or fallet are being pressured to switch to this model. And this is a model where textbook costs are assessed essentially as a flat fee per credit hour per semester, regardless of the cost of an individual students materials. So it's an average cost rather than being billed what you owe. And there are a few differences between these models, you know, with the traditional model students are billed the actual cost of their materials. They can opt out on a course by course basis. The institution is often the one negotiating prices faculty can have a say and whether their course is part of it or not. And then, of course, we are are always free for students. And under the flat fee or equitable access model students are paying that fee regardless of their own costs under federal regulations, which we'll talk about in a minute, there has to be an opt out option, but for the flat fee model, it's typically an all or nothing situation. So if the student has one course they can opt out of their stuff paying the fee for all of their courses, even if some of those courses are using OER. These flat females are often outsourced to a single vendor often Barnes and Noble or fall at and it forces all faculty in the institution to participate. So, you know, Spark, my organization, we have a position on inclusive access and that's we have a lot of concerns about it and I think it's important to lay out the positionality that I'm coming from when I talk about the regulations. So our main concerns about inclusive access are that the claims that these programs save students money are often exaggerated or based on apples to oranges comparisons like for example comparing the savings to print textbook prices, even though what students get is actually digital material and the actual discounts are a lot less compared to market prices. The and for equitable access or flat fee programs the charges are actually quite a bit more than what the average student allegedly spends on textbooks. So also concerns inclusive access prices and opt out processes are not always transparent to students and can be difficult to navigate makes it harder to take advantage of savings through these books and rental programs which are, you know, some of the things that have really driven down textbook costs or students spending on textbook costs in recent years. And finally, you know the flat fee inclusive access programs or equitable access programs are often priced really high and can roll progress rollback progress on on OER by sort of cannibalizing the savings that in those courses to subsidize more expensive courses. And you'll hear these similar concerns echoed by students and they've been actually echoed throughout the negotiated role making process through various student op eds and letters and and comments made during the public comment periods. So let us move on to talking about what the current regulations say. So this is really important to go over and this is going to dive deep in the weeds so do brace yourself. So, when we're talking about the current regulations, it's actually the case that a change in regulations is what originally opened the door to the proliferation of inclusive access programs. A change to rules took place in 2016, which was actually around the time that the traditional textbook publishing industry was was facing significant pushback from consumers and significant financial troubles as a result of that. And this change in regulations that opened the door to automatic billing was actually seized upon by the industry to roll out these programs. And when I dive into the details of what they look like you'll understand a little bit more why these programs are structured the way they are today. Before I talk about regulations, I just want to call out a couple pieces of terminology that are going to come up. So the first is title for aid. When we talk about title for aid what we're talking about is federal financial aid so that's like Pell grants federal student loans etc etc. And the federal government doesn't actually directly regulate higher education in very many ways. A lot of the regulations that institutions need to comply with are actually tied to eligibility for title for aid so eligibility to title for aid and what they can do with the actual title for dollars that are paid to the institution. So that's how a lot of regulation is implemented by the Department of Education so when we talk about the regulations we're talking about regulations relating to federal financial aid. And then you probably heard this term cash management it refers to the specific section of federal regulations about how students can actually manage students federal financial aid dollars so when a student is awarded federal financial aid that actually gets paid to the institution. On the students behalf and the institution has to follow a set of rules on what charges they can apply to that aid and then at what point they need to credit any balance to the student and that's the section that talks about that. And then finally I'm going to use the word authorization and that refers specifically to the process of a student or parent giving permission for the institution to use federal financial aid to pay for certain charges. So when I use the word authorization I need it in that very specific sense. Okay, so if you want to know where this this what we're talking about lies within the code of federal regulations it's entitled 34 which deals with education in section 668.164 which is in this cash management sub part and it concerns dispersing funds. And this is what the part of what the current regulations say. And what is shown on the screen right now is the way things have historically worked even before 2016 that an institution. When they receive that that money for federal student aid for a student, they have certain rules that they're going to need to follow about what they can do with that money. The first thing they can do with it is that you know they, they can automatically go ahead and use that money to pay for tuition fees and room and board. That's allowed sort of to take that off the top. And then the second thing that's allowed is that the institution can charge for books, supplies, other things, if they receive a student's authorization to apply those charges to the federal financial aid. So what this essentially means is that these are the rules for what you can charge to a student's aid balance before you need to credit the rest of them to the student to go ahead and pay for things like books bought from other sources, rent food, living expenses, transportation and all of that and many students you know are receiving the balance of their aid in order to pay for those things. In 2016, this new provision was added to this subsection that allows an institution to include the cost of books and supplies as part of tuition and fees, if they meet a set of conditions. So what this means is that an institution can count some books and supplies charges as tuition and fees which they can automatically charge to a student's financial aid without seeking any extra permission if they follow this specific set of rules. The conditions are first, if the institution does this set of things and this is actually the provision under which the vast majority of inclusive access programs are implemented. An institution can do automatic billing if they have an agreement with the book publisher or other entity that allows them to make the books and supplies available to students below competitive market rates. They have to provide a way for the student to obtain the books and supplies by the seventh day of the payment period which is standard. And then they have a policy under which the student can opt out of the charge. So you can see that why a lot of inclusive access programs have developed the way that they have having these contracts with publishers having an opt out process, providing access early in the semester, this very much went into shaping it. And before we move on, I want to note that there are a couple of other current provisions under which institutions can include books and supplies and tuition and fees. They can document the materials are not available elsewhere, and they can also demonstrate a compelling health or safety reason that's typically things like you know scuba gear that the institution says you know we have to build a student for this, because they're unable to guarantee they're getting the right equipment in a life threatening situation, or it was actually used during COVID for some things. Okay, how are we doing. Let's move along. The final thing I want to say is just to note that there's actually an entirely separate provision in this section that talks about using federal financial aid for books and supplies so you know we're talking a lot about you know what institutions can do with federal financial aid there's a whole separate other provision that allows that requires institutions to provide a way for students to use their their title for aid to be able to purchase books and supplies within a certain period of time. And this piece isn't changing so I think it's really important to remember that you know we're not taking away any ability for students to use their federal federal financial aid we're simply preventing institutions from automatically using it. Okay, let us move along for to talk about what the proposed change is. So, and just noting the link that Heather put in the chat thank you Heather for doing that there's a, the peer project put out a great paper that like analyzes the whole rulemaking process that led to the changes in 2016. And if you're interested in diving deeper, it's, that's a great resource. All right. Oh and then to address the question whether books and supplies include things like clay and ceramics. It depends on the institution, how they structure that but it could. All right. So the proposed change this change was originally proposed in early January when the department issued their cash management issued paper which lists the set of changes that they're proposing to make in the cash management section which includes this. What they are proposing is to eliminate that provision that allows institutions to include the cost of books and supplies as part of tuition and fees. So as we just saw, or I guess I should also note that the reason that they're proposing this is that they are concerned about the transparency of these programs, and that it prevents students from really having a choice about being able to shop around for lower prices. They've heard from a lot of students about concerns which you know who's continued to be echoed by students throughout this process. To summarize, what the current regulations say is that institutions can bill for books and supplies as part of tuition and fees without authorization if they meet one of these three criteria. What the proposal is as of this current session from the department is that institutions can only bill as part of tuition and fees without authorization if the student is confined or incarcerated, which is basically required because the student isn't able to buy their materials in any other way. But according to this proposal there are going to be no other ways that institutions are allowed to bill for books and supplies without student authorization, so that whole part is sort of gone. I added a provision that says that they can bill with student authorization or opt in if institutions disclose the price of the books and supplies before the student gives the authorization each term, and the student or parent chooses to purchase the material from the institution. So it really is a true opt in with transparency. And they also need to offer materials at or below competitive market rates. So this is a significant improvement. It removes the provision that has allowed automatic textbook billing and then it adds additional conditions under which institutions can allow students to opt into being billed directly with transparency. So to summarize what what will this change if it goes forward as currently proposed what will it do. It will require institutions to set up some form of opt in model for textbook billing if they continue directly billing students for textbooks rather than just letting students buy their materials on on their own. And note that like technically this only applies for students using financial aid but you know generally any process you set up for students using financial aid is applied to all students from from a pure logistical standpoint. So for the purposes of the rest of this discussion we'll just sort of talk about it applying to all students. It would require greater upfront transparency about inclusive access costs before students opt in at the start of each term so students are going to need to be like really informed of any charges so it's not like an institution could go and just like ask students if they want to opt in without telling them what the price of the thing they're opting opting into is. And it's also going to restore more consumer agency to the textbook market that can help keep prices in check you know one of the big challenges of the automatic billing model is that it introduces friction and barriers for students to be able to go shop around for prices access those use books library resources ways of getting around painful price that have really kept downward pressure on prices and student spending in recent years. So it would restore that what this will not do. So you're going to hear a lot of like media out there and you know the the textbook industry saying that this is going to be the end of inclusive access. It's not programs can still use an opt in model there are a number of campuses that do inclusive access on an opt in model successfully I just did a webinar with the University of Central Florida that talks about their program and it's and it's very successful. And the only difference is that you know students are really given a choice about whether to opt in and if the discounts are really truly as compelling as everybody who are proponents of these programs say students are going to opt into that if they have a choice to you know students are savvy they're going to look look at the deal that's offered. If it's really that great they will opt in and there's you know based on the University of Central Florida experience there's no reason to believe that that's not the case because I think something like 70% of their students still opt in. And, you know, we've also heard publisher say things like you know we, we won't offer discounts if it's an opt out opt in model will only offer it if it's an opt out model but you know if publishers want students business or want to do deals with institutions, they're going to adapt. And I think it's important that we all keep in mind what the market power of institutions really is other things it will not do. As I said before, it's not going to affect students ability to voluntarily use their financial aid for books and supplies and this is another thing that you might hear out there and messaging promoted by the industry that this, you know is taking away students ability to use federal that's just not the case it's it's letting them use it voluntarily. It's it's it's the only thing that it's taking away students having it used without their permission. And finally, and I think this is really important to acknowledge that this is not going to solve all the problems in the textbook industry it's not going to stop publishers from engaging in other practices that force students to buy textbooks like access codes and online even if it's an opt in model, there are still ways that that publishers can design materials that force students to have to opt in in order to get access to required coursework or to do their homework. And those are still real problems in the textbook marketplace that our institutions are going to need to grapple with that this regulation is not going to solve. So I think it's important to keep in mind that this this isn't necessarily going to fix everything, but it is going to make things a little bit more fair for students. Before I turn it back to Liliana to sort of wrap us up, I do want to just note why spark supports this. I think it's really important that we restore choice to students over how they're limited financial resources are spent students. We heard the Department of Education say this is students money, and they should have control over over how it is spent it is not institution money. It also ensures that programs that are seeking to sell products of institutions do want to set up these programs and directly bill students for course materials that they're having to compete for student business rather than just getting it by default. You know, to the extent we're using markets and capitalism to solve our problems consumer choice and competition is really important and restoring that that that choice is what this does. I think finally, it's, it does protect some of the progress that institutions are making to advance we are adoption and other solutions, I see the flat fee or equitable model as a real threat to the progress institutions have made on affordability that really does obscure the prices and make it hard for students to really understand the value of the materials they're getting and making sure that they really have the ability to opt in and understand what they're being charged for is going to help with that. All right, I'm going to turn it back to Liliana and I, we will be able to get to questions and a bit. So, where do we go from here. So, if we go to the next slide. This is the last week of the negotiation rule making process. So this first week of March. And then the committee will either reach consensus on the variety of proposals the department has put forth or not. The department will they'll take all the information from the public comment from negotiators and create, you know, publish. They will develop a proposal based on the outcome of the negotiations, and then they will publish that this summer at some point in the federal register. The earliest any new rules could be in effect would be July 1, 2015, but just know that if there isn't consensus that does impact whether it goes forward or not, or the department could propose their own language to the So, if we go to the next slide, we do want to make you aware of where you can find all the resources and materials that the department has made available. So if you go to the Department of Education's negotiation rule making website, they actually have transcripts and recordings of all the sessions, as well as the materials that are provided to negotiators to consider or to review. So you can actually look at and watch some of the previous recordings if you're interested. Additionally, we've definitely here at which you have gotten a couple of emails from folks say, we're currently looking at inclusive access contracts, like what should we do, which he does not take a position for against where neutral, but we do want to provide you with information that what's happening in the negotiation rule making process. So we just recommend that you can connect with us so we can inform us to what's going on with the Department of Education and keep you up to date as to what is going on because this may and after contrast. But from there, I'll pass it on to Nicole to guide you through some things that you can do and other things that you. Yeah, so just, you know, to Lily on this point, I think a lot of institutions are wondering, you know, what, what, what do we, what do we make of this and where do we go from here, you know, I think we really recommend institutions that are actively considering these programs to reconsider. There are many reasons why we recommend that institutions, you know, really deeply consider the impact of these programs on students so go to inclusive access.org for more information about that. But if your institution is currently under pressure to switch to an equitable access model which we've heard that a lot of institutions are, especially from like Barnes and Noble or Follett is vendors. I think it is definitely worth considering pushing back on that or like waiting to implement a, you know, really big change to an opt out model until it's clear what the regulations are. And we always recommend that institutions consider moving to an opt in model because it's better for students and if this proposal moves ahead it may be how the market works in the future anyway. So with that, I think we're on to Q&A. So I guess I can stop sharing my screen. So Heather, would you like to guide us? Yeah, I've been trying to keep up with all the questions. One of the earlier questions was, what does this change look like on the student's bursar? Do we know? That's going to vary by institution. Okay. So, no. Okay. And how would this impact institutions that do not set up inclusive access programs, if at all? It should not impact them at all unless they wanted to pursue an inclusive access deal, then they would go to the Department of Education's guidance and go accordingly. Okay. Are there any requirements on where the money goes? Likely and in my experience, there's an overage and the institution just gets to keep the money. So I think that is, there are regulations that answer that question. I'm not sure precisely what they are, but that's a bigger question about how institutions manage federal financial aid. I think the piece of that that's relevant to this is that when we're talking about an institution being able to draw down on a student's financial aid funds to pay for tuition fees, room and board, et cetera, et cetera. The more they draw from that balance, the less is actually dispersed to the student or not dispersed credited to the student so that they can use that money to pay for all of their other expenses like housing and transportation. So that's why we want to be really mindful about what charges are being added without their consent because it does reduce the amount that they are credited for those other expenses. And if they can wait to get that credit and find a cheaper book that way, that saves them money. Let's see. As you say this doesn't address the access code program problem where students have to pay to do their homework, often on top of a technology fee to use the existing LMS. What are your thoughts about how we could tackle that in the future. Well, that's a tricky question. There's so there's so many, there's so many facets to this right, because you know there's, there's the conversation about like labor that plays into this you know faculty are saying that I need these tools to be able to do my job. And whose responsibility is, is it to provide those tools is it the institution is at the student like, how do we answer that question. I also think that, regardless of how your inclusive access program is implemented, institutions do really need to deeply examine the practice of requiring students to pay a third party in order to be able to complete required coursework. There's a lot of classes that use courseware that have upwards of 80% of their grade administered through the course where you know test quizzes homework. That really is adding a toll, an additional toll booth on on top of, of taking a class so I think it really is a broader question that higher ed needs to grapple with and it is inherent in technology shifting that that we need to ask those questions. So I guess, I don't have an answer to that I think in the short term there's definitely education to be done to make sure that faculty understand the implications of assigning courseware, and that if they are going to do it what it means for their students, not in a judgmental way, but making sure that the faculty really, you know, mean to assign those materials as opposed to doing what you know I'm sure publishers try to make very easy which is just say yes to this, you know, free additional product that comes with the digital textbook, without realizing the back end implications for their students. I like how you refer to it as a toll booth. It all adds up. Will this regulations change. Oh, yeah, just really on anything to add to that. We have a lot of questions I'm trying to trying to get through them all but will this regulation change or affect equitable access programs in any way that is different from inclusive access. And then probably means something a little bit different for the flat fee equitable access programs than the inclusive access programs because it affects sort of an average price model as opposed to just a course by course situation. What do you think it probably will have, it will be a bigger change and there will probably be more questions to work out with vendors for flat fee or equitable access models, if, if this change goes forward as proposed. Let's see I'm scrolling through the chat now to see if I, I know that some just got posted in the last couple of minutes that aren't on my list. Are there any requirements on where the money goes. There, if there's an overage and an institution gets to keep the money. Oh, I think, did we already address that. Did we do that one. Okay. Yeah, let's see, sorry about that. Let's see. How do you expect opt in to affect bookstores inclusive access has proven to be about 20% less for our students. We have an opt out rate under 3% and most of those students have tried to opt back in for the lower price, but did so after the opt in out deadline. Bookstores aren't supported by their campus and any materials stocked are a financial negative for us. We would be unable to offer both opt in and actual texts. So I guess the question is, how do you expect opt in to affect bookstores. That's a complex question and it's going to vary greatly based on the individual institution, how their bookstore operations are structured and what type of course materials that they're offering. You know, I don't want to pretend that they're going to be no impacts of course they're going to be impacts and any change in regulation is going to have is going to change things. There will be a period of adjustment. And, you know, I understand that on some campuses bookstores are facing a lot of challenges. And some of those challenges are because students shop off campus to get access to their textbooks and in some cases, inclusive access has brought more business on campus. In that case, there likely are going to be impacts for bookstores if more students are, it's easier for students to go seek deals elsewhere. But you know that's again it's going to vary based on on the individual context. Well I think I think I've been through all the questions. Nicole and Lilliana thank you so much for taking the time to speak with us and spend your afternoon with us. We're going to let you get back to your lives and but Liz and I have a couple of slides that we want to just share with the audience before we head out. But thank you again to our to our presenters today. Thank you so much and I want to thank the audience for showing up on a Wednesday afternoon to talk about a very complex and we subject grateful that you all took the time. Thank you for having a question before you guys go. I'm so sorry. If our institution enters into one of these automatic textbook billing flat fees say the students are charged $299 a semester and they have to opt out. If this role passes on July 1 2025, is our contract null and void at that point or are they grandfathered in, like if it's a 10 year contract for instance. I don't know if I can answer that question. Nicole, do you have background on that? I mean, federal rules are federal rules. They apply. The federal government is not a party to that contract. You know, federal rules are going to apply. You know, is it possible there's going to be some provision for that added? I think it's unlikely, but I guess it could be possible. But no, I would anticipate that the rules fully apply as of the effective date of the rules and contracts would need to change to accommodate that. Yeah, and to be clear, the contract only concerns how or most contracts will have some provision in the regarding changes of laws and regulations that allow for, you know, renegotiation and changes. And, you know, this, this happens all the time. All right. Thank you. Thank you, Nicole and Liliana. So I'll share my screen. Oh, sorry. So we've got two more two more webinars this week. They're both on Friday and just. They're not they're not at the same time. So the 1st 1 is at 12 p.m. Eastern 90 and Pacific and we're excited to have some of our. OER executive council is going to talk about how the, how membership with OER has affected their. Their open education journeys at their schools and then in the afternoon, it'll be 530 Eastern time to 30. Pacific time. The open for anti racism program. We're going to have the co directors of the program and 1 of the coaches and a former who is also former participant talk about the program. So we're excited about those and. And then looking forward into spring in April, we're going to have a webinar on AI because obviously that's a very. Big topic right now with a lot of interest and then in May, we're going to be looking at different open education publishing platforms and we're going to have people. Who use the platforms, not necessarily the people who created the platforms come talk about them. And then we're excited this week that the equity diversity inclusion committee announced the summer book club. Selection so that this selection was voted on by the community from a short list that the committee. Chose and so it's academic ableism disability and higher education. And this is this won't, we're, this won't start until June, but we just want to announce it and this book is available. Free online so no need to buy anything, but just something to look forward to and. I can't see the chat, but I'm sure Heather is putting the links in there for you. And then just, you know, let us know what you thought. This is a little bit different. We don't do that many webinars and policy. So please let us know what you thought about it. And we do we do read every response. So we really appreciate the feedback. And stay in the loop. If you're not already on most of you are probably on our community email, but if you're not. Come join us. And just, just want to say thank you everyone for joining. I'm just opening up the chat. Thank you. I'll stop the recording.