In the face of the COVID-19 pandemic, universities and other higher education providers have (or are in the process of) transitioning their courses usually delivered face-to-face to other modes of study, including for example using virtual classrooms combined with other elements more typically used in an online or distance learning mode of study.
The change in delivery mode has the potential for wide-reaching impacts across the sector. Universities and other higher education providers will need to ensure that, despite the change to delivery mode, they are continuing to comply with their regulatory obligations, designed to protect the strong reputation of the sector.
The impact will be different depending on the type of course being delivered. Within the diverse range of courses delivered by universities and other higher education providers, some will be easier to transition to an online delivery mode than others. For example, for courses that have practical components such as medicine, science and engineering, there may be greater challenges transitioning aspects of the course to online or distance learning modes of study during the COVID-19 pandemic.
Delivery of courses having a student exchange component have also been impacted. For example, many Australian universities have cancelled student exchanges and required students who have already commenced their student exchange to return to Australia. Some universities have taken steps to cancel student exchanges both in semester 1 and semester 2 this year, either through the contractual arrangements with the overseas institution and/or using powers under the contracts with students. While this action is being taken to ensure the safety and well-being of students, universities and other providers should carefully consider the terms of the student exchange agreements before taking this step.
Oversight by peak corporate and academic governance bodies
When new courses are being developed or existing courses are being reviewed in anticipation of renewal of accreditation, a university or other higher education provider must specify the mode/s of delivery for the course. For higher education courses, this requirement exists in the Higher Education Standards Framework (Threshold Standards) 2015 (Threshold Standards), Standard 3.1.1b. Similar requirements exist for foundation programs and ELICOS courses – see National Code of Practice for Providers of Education and Training to Overseas Students 2018 (National Code), Standard 11.1.2, the English Language Intensive Courses for Overseas Students (ELICOS) Standards 2018 (ELICOS Standards), Standard C1.1(n) and the National Standards for Foundation Programs (Foundation Programs Standards), Subject/Unit Information annexure.
The mode of delivery will typically comprise one or a combination of the following:
- Face-to-face delivery;
- Online delivery, which includes for example study where the teaching staff and student primarily communicate through digital media, technology based tools and IT networks, and does not require the student to attend scheduled classes or maintain contact hours; and/or
- Distance learning, which includes for example learning that a student undertakes off campus, does not require attendance at regular tuition for the course and will often be self-directed.
If a university or other higher education provider proposes to change the mode of delivery of a course prior to renewal of accreditation (either under the Tertiary Education Quality and Standards Agency Act 2011 (Cth) (TEQSA Act) or the Education Services for Overseas Students Act 2000 (Cth) (ESOS Act)), it is necessary for the change:
- To be approved pursuant to the provider's governance framework, which would include for higher education courses approval by the provider's peak academic governance body;
- For providers without self-accrediting authority (i.e. excluding universities and private higher education providers who have self-accrediting approval), to be notified to TEQSA as a major course change.
- To the extent the courses are delivered to international students, to be approved by TEQSA under the National Code, Standard 11.3.
Accordingly, it is important that the changes to course delivery mode arising from COVID-19 be subject to oversight and approval by the provider's governing bodies and, subject to the COVID-19 specific guidance summarised below, possibly notification to and/or approval by TEQSA.
Key messages from TEQSA
Since 17 February 2020, TEQSA has been publishing guidance to the sector containing the latest regulatory advice during COVID-19 –.
The key messages from TEQSA (as of 26 March 2020), and our brief commentary on those messages, are as follows:
- TEQSA has said it will be flexible in order to support students to study online, either in Australia or offshore. TEQSA intends to work collaboratively with the sector to offer a pragmatic and sensible regulatory approach to the challenges faced by providers at this time.
- All courses that form part of the Australian Qualifications Framework (AQF) must meet the high-quality standards regardless of location of the student and the mode of delivery. These variables should not form an impediment to attainment of an award on the AQF.
- However, higher education providers must assure themselves that such arrangements maintain assessment and quality standards, and are appropriately documented. This may not be possible for some qualifications, including those with mandatory work placements that cannot be undertaken during COVID-19.
- Higher education providers will need to report material changes that significantly affect their ability to comply with the Threshold Standards. This is likely to include changes in delivery mode to enable students to continue their studies; campus closures; and a material shift in the provider's financial sustainability or viability.
- Higher education providers must notify TESQA of material changes within 14 days of becoming aware of the change.
- In relation to international students, TEQSA acknowledges that due to COVID-19, universities and other higher education providers may not be in a position to fully comply with the requirements of Standards 8.19 and 8.20 of the National Code. These standards limit the volume and timing of online or distance learning modes of study to students in higher education courses (effectively requiring such courses be delivered, in the majority, using face-to-face delivery) (Face-to-Face Delivery Relaxation). Where providers determine that online or distance learning mode of study is in students' best interests for the first study period of 2020, TEQSA will not pursue regulatory action provided accurate and comprehensive documentation is maintained in the student's file. However, TEQSA has reminded higher education providers that they continue to have obligations to students undertaking courses using online or distance learning modes of study (considered further below).
- TEQSA also reminds universities and higher education providers of their reporting obligations in the Provider Registration and International Student Management System (PRISMS). In particular, while providers may have delayed the commencement of study periods to allow more time to prepare for delivery in a non-face-to-face study mode, TEQSA still expects that providers continue to meet their reporting obligations under section 19 of the ESOS Act in relation to non-commencement of studies by international students.
There are some notable omissions from TEQSA's key messages. In particular:
- The Face-to-Face Delivery Relaxation does not extend to the regulatory requirements concerning foundation programs and ELICOS courses. In relation to ELICOS courses in particular, TEQSA has said that it will work with providers on a case-by-case basis to ensure any alternative arrangements put in place mitigate disadvantage to students, given the challenges presented with online delivery of ELICOS courses. As a consequence, it will be important for universities and other higher education providers to work closely with their case managers on their proposals for alternative delivery modes during COVID-19, to ensure that they meet with TEQSA's expectations.
- The Face-to-Face Delivery Relaxation does not extend to seeking TEQSA's approval at least 30 days prior to commencement of a proposed change to the delivery mode for a course that was originally approved for face-to-face mode of study (see Standards 11.1 and 11.3 of the National Code Standards). However, it is clear from TEQSA's key messages that it does not expect universities and higher education providers to delay implementation of the changes to delivery mode pending TEQSA's approval. That is appropriate in the circumstances – all universities and higher education providers have an obligation to secure the wellbeing and safety of their students, including under Standard 2.3 of the Threshold Standards. However, it would be prudent for universities and higher education providers to seek TEQSA's approval for changes to the mode of study when they make a material change notification relating to these changes.
Against the above background, if universities or other higher education providers have not yet notified TEQSA of such changes in response to COVID-19, they should do so as soon as reasonably practicable (notwithstanding the 14 day time period for notification may have passed). When making those notifications, universities and other higher education providers should:
- Give careful consideration to how courses designed to be delivered to students in face-to-face mode of study can otherwise be delivered compliantly using online and/or distance learning modes of study;
- Give TEQSA details of those changes when making their material change notification;
- If relevant, seek input and guidance from their case manager on the ongoing compliant delivery of foundation programs and ELICOS courses during COVID-19; and
- If relevant, seek formal approval of the change in delivery mode during COVID-19, but not delay implementing those changes immediately to the extent necessary to secure the wellbeing and safety of their students and staff.
Impact on delivery of courses to international students
While the change to delivery mode will impact all students in some way, from a regulatory perspective the change will be most significant in relation to international students.
The National Code contains restrictions as to the amount of a course that can be delivered to international students online or using distance learning.
While the key messages from TEQSA make clear that TEQSA will take a cooperative and pragmatic approach, including through the Face-to-Face Delivery Relaxation, there are a range of other regulatory requirements with which universities and higher education providers will need to ensure compliance. While there is some overlap, the regulatory requirements for higher education courses, foundation programs and ELICOS courses vary, though there is some overlap.
As COVID-19 continues to disrupt face-to-face teaching, universities and other higher education providers must carefully consider how they deliver each course they offer, while complying with changing regulations.
Regulatory requirements that will not be automatically relaxed during COVID-19
Universities and other higher education providers will still be required to fulfil some regulatory requirements that will not be relaxed during COVID-19 for their higher education courses. These include:
National Code:
- Standard 6.3 (student support);
- Standard 6.4 (learning support);
- Standard 8.22 (non-face-to-face student and learning support); and
- Standard 11.3 (TEQSA approval for mode of study changes).
Threshold Standards:
- Standard 1.4 (methods of assessment);
- Standard 2.1 (facilities and infrastructure);
- Standard 2.3 (wellbeing and safety);
- Standard 2.4 (student grievances and complaints);
- Standard 3.1 (course design);
- Standard 3.2 (staffing);
- Standard 3.3 (learning resources and educational support);
- Standard 5.2 (academic and research integrity); and
- Standard 6.3 (student participation).
For foundation programs, in addition to the above National Code requirements, the further regulatory requirements include:
National Code:
- Standard 8.6 (monitoring and recording attendance); and
- Standard 8.21 (program-specific minimum face-to-face teaching requirements imposed by TEQSA).
Foundation Programs Standards:
- Standard 4.1 (minimum scheduled course contact hours for formal English language learning); and
- Standard 7.1 (minimum scheduled course contact hours generally).
For ELICOS courses, in addition to complying with the National Code requirements identified above for foundation programs, universities and other higher education providers must also meet the ELICOS Standards P1.1 for minimum face-to-face scheduled course contact per week.
The need to continue meeting compliance with these (and other) regulatory requirements reflects TEQSA's guidance that teaching and assessment must continue to meet the academic quality standards regardless of the location of the student or the mode of delivery. Ensuring continuing compliance when delivering the courses online will involve careful consideration as to whether the change in mode of study will require other consequential changes.
For international students, universities and other higher education providers need to consider the terms of the written agreement they are required to enter into with students. The written agreement should specify the mode of delivery for the course (see the National Code, Standard 3.3.1). Consideration will need to be given to whether the written agreement permits a change in mode of delivery and, if not, whether the change can be effected using a policy without the need to formally vary the written agreement. We give further consideration to this scenario in our article Force majeure and frustration of university contracts during COVID-19.
As foreshadowed above, there may be some courses for which it is simply not possible to continue delivering the course using an alternative mode of delivery. For example, TEQSA might determine that a provider is unable to compliantly deliver an ELICOS course in the short term, without significantly more work being undertaken to transition from a face-to-face delivery mode to an online or distance learning mode of study. In those circumstances, the university or higher education provider would need to ensure that it complied with its obligations in relation to student and/or provider default (depending on the particular circumstances – see the ESOS Act, Part 5, Division 2).
Please contact us if you wish to discuss the steps being taken by your university / provider to transition away from face-to-face delivery of courses during COVID-19, whilst securing ongoing compliance with all relevant regulatory obligations.