Institutional Compliance by August 1, 2021 - When Serving Students Receiving Veterans Benefits

Institutions that offer programs to students who utilize Veterans Benefits must be aware of institutional compliance requirements that are to be observed by August 1, 2021. Our colleague Leah Matthews, Executive Director and CEO, Distance Education Accrediting Commission (DEAC), joins me today to explain what the law is and to highlight several sections institutions that serve veterans must address immediately.

Johnny Isakson and David P. Roe, M.D. Veterans Health Care and Benefits Improvement Act of 2020

Isakson and Roe became federal law on January 5, 2021. The purpose of the law is described in the law’s preamble:

“To provide flexibility for the Secretary of Veterans Affairs in caring for homeless veterans during a covered public health emergency, to direct the Secretary of Veterans Affairs to carry out a retraining assistance program for unemployed veterans, and for other purposes.”

Title I of Isakson and Roe addresses Education, and adds new requirements for educational institutions participating in the educational assistance programs of the Department of Veterans Affairs (VA). We will address 2 of the 24 Sections of Title I – EDUCATION; Subtitle A – Education Generally, for which we believe institutions should review and seek additional guidance:

• Sec. 1015. Additional requirement for approval of educational institutions for purposes of the educational assistance programs of the Department of Veterans Affairs.
• Sec. 1018. Requirements for educational institutions participating in the educational assistance programs of the Department of Veterans Affairs.

We are aware that institutions have been seeking compliance guidance. Veterans Services offices have offered training for the School Certifying Officials (SCO’s), but clarification is still needed. At the June 14-15, 2021, Council of College and Military Educators (CCME) Annual Symposium, Charmain Bogue, Executive Director of the Educational Services Veterans Benefits Administration, indicated that they are aware of the many questions about implementation of the 30 provisions found in Isakson and Roe. She expressed that it is their intention to offer guidance including a waiver process and indicated that it is not their intention to disapprove schools on August 1 as institutions are working to come to compliance. Charmain Bogue provided testimony titled “Isakson-Roe at Six Months—An Update on Implementation of Education Improvements” in a July 20, 2021, hearing of the House of Representatives VA Committee.

Guidance Offered by Veterans Services

Guidance on both sections was emailed to institution School Certifying Officials in July 2021. The complete content of these emails is not currently available on the Isakson and Roe Veterans Health Care and Benefits Improvement Act of 2020 webpage, however we have included the guidance below. The email on July 13, 2021 provided guidance addressing Section 1018. The email on July 19, 2021 provided guidance addressing Section 1015.

Section 1015

On July 19, 2021, School Certifying Officials received important guidance on Section 1015 of the Johnny Isakson and David P. Roe, M.D. Veterans Health Care and Benefits Improvement Act of 2020. Section 1015 established the new requirement for accredited institutions to be approved and participate in the Department of Education’s (DoE) federal student aid programs in order to continue to participate in educational assistance programs offered by the Department of Veterans Affairs, such as the GI Bill. This change essentially resulted in an amendment to Section 3675 of title 38, United States Code, in subsection (b) by adding a new paragraph:

“(4) The educational institution is approved and participates in a program under title IV of the Higher Education Act of 1965 (20 U.S.C. 1070 et seq.) or the Secretary has waived the requirement under this paragraph with respect to an educational institution and submits to the Committee on Veterans’ Affairs of the Senate and the Committee on Veterans’ Affairs of the House of Representatives notice of such waiver.”

And also by adding at the end the following new subsection:

‘‘(d)(1) The Secretary shall submit to Congress an annual report on any waivers issued pursuant to subsection (b)(4) or section 3672(b)(2)(A)(i) of this title.

2) Each report submitted under paragraph (1) shall include, for the year covered by the report, the following:

(A) The name of each educational institution for which a waiver was issued.

(B) The justification for each such waiver.

(C) The total number of waivers issued.

(b) REQUIREMENT FOR APPROVAL OF STANDARD COLLEGE DEGREE PROGRAMS.—Clause (i) of section 3672(b)(2)(A) of such title is amended to read as follows:

(i) Except as provided in subparagraph (C) or (D), an accredited standard college degree program offered at a public or not-for-profit proprietary educational institution that—

(I) is accredited by an agency or association recognized for that purpose by the Secretary of Education; and

(II) is approved and participates in a program under title IV of the Higher Education Act of 1965 (20 U.S.C. 1070 et seq.), unless the Secretary has waived the requirement to participate in a program under title IV of the Higher Education Act of 1965 (20 U.S.C. 1070 et seq.).’’

Institutions that are accredited by an agency recognized by the U.S. Department of Education but do not currently have a Program Participation Agreement with the U.S. Department of Education to participate in Tile IV federal student aid will need to ensure that they obtain and fulfill the waiver requirements set forth by Veterans Service guidance on July 19, 2021. The VA, however, has made it clear to School Certifying Officials that there is no expectation of immediate disapproval on August 1, 2021 when PL 116-315 Section 1015 is to become effective. Once an institution has submitted a waiver request, it will be placed in a “pending waiver decision” status. No adverse action under section 1015 will occur while a request for a waiver is pending a decision from the Department of Veterans Affairs (VA). All waiver requests will be considered by VA on a case-by-case basis and institutions should not assume that a waiver will be granted.

To request a waiver, submit an email to VBACOSECTION1015WAVR@va.gov. The waiver request package must include a cover letter on the organization’s letterhead requesting approval for an Education Service Waiver under 38 U.S.C. §§ 3675(b)(4) and 3672(b)(2)(A)(i)(II). The request must include the following information:

• Date of last application for participation in the Federal funded student financial aid through the Department of Education and the result of that application;
• If the school has a currently pending Program Participation Agreement with the Department of Education and proper documentation of the submission (VA may verify this submission with the Department of Education); and
• Enumerated list of the specific provisions of Title IV with which the institution is unable or has chosen not to comply. For each non-compliant provision, a reason or justification for non-compliance.

For those institutions that are accredited and currently have a Program Participation Agreement with the Department of Education, it is expected Title IV eligibility and participation continue beginning August 1, 2021. If eligibility is lost or participation ceases at any point after August 1, 2021, a waiver would need to be sought to continue GI Bill® eligibility.

Section 1018

Guidance addressing Section 1018 was emailed from state veterans services offices to the institution School Certifying Officials on July 13, 2021.The guidance describes Section 1018 as follows: “Many of the requirements are consistent with the requirements of the Principles of Excellence, currently in Executive Order 13607; however, there are requirements in addition to those embodied in the Principles of Excellence which schools must also satisfy to maintain approval for GI Bill® participation”.

The guidance provides an opportunity for the institutions to seek a waiver if the institution cannot satisfy the requirements of Section 1018 by August 1, 2021, the institution must apply for a waiver by August 1, 2021. Institutions should note the following:

• Waiver process is described in the guidance.
• Upon submission of the waiver request, the institution will be on pending waiver decision status.
• No adverse action under Section 1018 will occur while the request is pending.
• If waiver request decided favorably, it will be for 1 year period not to exceed one year beginning Aug 1, 2021.
• If waiver request decided unfavorably, it will be reported to the State Approving Agency and a caution flag will be added to the GI Bill comparison tool.

Despite Ms. Bogue’s testimony indicating that the VA “communicated the requirements to schools and State approving agencies on several occasions and held an “Office Hours” training event for School Certifying Officials (SCO),” there are two items that remain unclear after the Veterans Services guidance for Section 1018.

First, the first part of Section 1018 includes a list of notifications that must be provided directly to the student prior to enrollment. Item 9 on the list of notifications addresses courses leading to a licensed or certified occupation. The notification requirement in the new law, for purpose of Veterans benefits, is described differently than professional licensure program notifications required by 34 CFR 668.43 (a)(5)(v) and 668.43(c) required for compliance to participate in Title IV HEA programs. Institutions should note that these are different requirements to provide different benefits to students.

Isakson and Roe requires the institution to provide:

“any additional requirements including training, experience, or examinations that are required to obtain a license, certification or approval for which the course of education prepares the individual.”

It appears that the notifications must include more than educational requirements, but the terms “training” and “experience” do not provide clear parameters of what is being asked. Additionally, we are wondering if the student is located in a different state, what state’s information should be shared? The guidance did not address interstate activity nor any more specificity regarding the parameters of this notification. This specific notification is not described in the original Principles of Excellence, in order for us to obtain direction.

Second, in a later portion of Section 1018, the guidance indicates: “Accredited educational institutions agree to obtain approval of the respective accrediting agency for each new course or program.” It appears that the author of the guidance attempted to summarize this portion of the law, but in doing so, created an obligation that is beyond what is required by accreditors.

The law itself states (bold lettering for emphasis):

“(F) With respect to an accredited educational institution, obtain the approval of the accrediting agency for each new course or program of the institution before enrolling covered individuals in such courses or programs if the accrediting agency determines that such approval is appropriate under the substantive change requirements of the accrediting agency regarding the quality, objectives, scope, or control of the institution.”

Please note that the law indicates this requirement under a specific circumstance despite the guidance seemingly indicating required approval for EVERY new course of program.

This is an example of how institutions should read the specific language of the law as the guidance is secondary authority to the law. If there is conflict of language, the law itself is the primary authority.

Our Suggestions for Institutions

With the deadline looming at the end of the month, we urge institutions serving students who obtain Veterans Benefits to do the following:

• Review the language of the law: Text – H.R.7105 – 116th Congress (2019-2020): Johnny Isakson and David P. Roe, M.D. Veterans Health Care and Benefits Improvement Act of 2020
• Look for timely updates on the Isakson and Roe Veterans Health Care and Benefits Improvement Act of 2020 webpage. 
• As each section of the new law is implemented, updates are being provided through a government messaging service at Veterans Benefits Administration (govdelivery.com). 
• Review the July 20, 2021, testimony of Charmain Bogue, Executive Director, Education Services, U.S. Department of Veterans Affairs to the U.S. House of Representatives VA Committee.
• Review the Veterans Services guidance for Section 1015.
• Request a waiver to address Section 1015, by submitting an email to VBACOSECTION1015WAVR@va.gov . Waiver deadline is August 1, 2021.
• Review the Veterans Services guidance for Section 1018.
• Request a waiver to address Section 1018, by submitting an email to SECTION1018.VBACO@va.gov. Waiver deadline is August 1, 2021.
• Make sure that the School Certifying Official at your institution is in touch with your State Approving Agency (SAA) in your state.

WCET will continue to follow this topic and provide updates if we receive them. If you have additional questions let us know!