Published by: WCET | 5/16/2024
Tags: Distance Education, Negotiated Rulemaking, Online Learning, Professional Licensure, Regulation, SAN, State Authorization, U.S. Department Of Education
There is no more hiding from the eventuality of the effective date for new Federal regulations affecting the institutions serving students in programs leading to a license or certification. Institutions and the U.S. Department of Education (Department) have a common goal to support a student participating in an educational program leading to a state license to complete the state educational requirements to pursue their goal of becoming employed in the occupation for which they were trained and educated.
However, there has been some confusion about the new rules developed for student protection that were designed without input from the professional licensing community. In this post, we will attempt to unpack the rules and suggest implementation strategies while we continue waiting for the topical FAQ as promised by the Department.
In a nutshell, the institution must now do more than provide notifications as required by Federal regulations effective July 1, 2020, for students enrolled in licensed programs.
The new and amended regulations, developed from the Winter 2022 negotiated rulemaking and released as final on October 31, 2023, elevate the responsibility of the institution to certify as provided below for the Program Participation Agreement (PPA) in addition to providing notifications. The additional requirement in the PPA is as follows:
On April 9, 2024, the Department released (GE-24-03) Updates on New Regulatory Provisions Related to Certification Procedures and Ability-to-Benefit. This announcement directs that, before the July 1, 2024, effective date of the regulation, the institution should document any specific barrier to compliance beyond the institution’s control. The Department, in the event of a review or audit, will consider the reason for not complying to determine if any consequences are warranted. This is a limited circumstance compliance extension as the Department expects full compliance related to the documented difficulty by January 1, 2025.
We provided an analysis of the rule when it was released: New Federal Regulations, Part 1: Addressing Programs Leading to a License or Certification.
Our readers may recall that the development of a federal regulation to address programs leading to a license was first discussed in the 2014 Negotiated Rulemaking when the committee addressed state authorization. That committee did not reach consensus. However, the Department wrote and released a proposed rule in July 2016, then released the final rule in December 2016, which missed the master calendar deadline. This postponed the effective date until July 1, 2018. The administration changed and the Department sought to delay the state authorization-related rules on the eve of the effective date in 2018. The Department maintained that the reason for the delay was to hold another rulemaking to address flawed terms that needed to be revised. Court drama ensued and the delay was vacated by the U.S. District Court, and the flawed regulations became effective for about thirteen months from late May 2019 until July 1, 2020.
Before the previously delayed flawed rules became effective, the 2019 Negotiated Rulemaking concluded with a new set of state authorization rules by negotiated rulemaking committee consensus to replace the flawed rules. Among the state authorization rules were new professional licensure notification regulations that became effective July 1, 2020.
A year later, the 2021- 2022 rulemaking announcement included the issue: Certification Procedures. The sub-issue of programs leading to a license had not been announced but was included in the Certification Procedures week one issue paper released for initial negotiator discussions. Despite no consensus, the Department moved forward with primarily the same language a little more than a year later in the May 2023 proposed regulations. These were to add institutional responsibilities to the Program Participation Agreement and slightly amend the notification regulation. When the final regulations were released on October 31, 2023, there was a revision to allow for student attestation.
Throughout this history of the rules, the various members of the professional licensing community, including the various state boards, were not advised or included in the discussions to develop a regulation to support and protect future practitioners.
Through new regulations, the Department intended to increase the rigor of procedures for the institution’s certification to participate in federal aid programs.The Program Participation Agreement (PPA) is the agreement between the institution and the Department that specifies the conditions of the institution’s participation upon compliance with the provisions of the agreement. Consequences for failure to comply could include an impact on future participation in Title IV programs, fines, and repayment of misspent funds.
The new regulation addressing programs leading to a license or certification is among the new provisions of the PPA. Because the Code of Federal Regulations does not update to include a searchable weblink until the regulations are effective (July 1, 2024), the regulation is provided here with some language in bold for emphasis pertaining to professional licensure programs.
34 CFR 668.14(b)(32)
(32) In each State in which: the institution is located; for students enrolled by the institution in distance education or correspondence courses are located, as determined at the time of initial enrollment in accordance with 34 CFR 600.9(c)(2); or for the purposes of paragraphs (b)(32)(i) and (ii) of this section, each student who enrolls in a program on or after July 1, 2024, and attests that they intend to seek employment, the institution must determine that each program eligible for title IV, HEA program funds—
These regulations are intended to address all modalities but will have the largest impact on institutions serving students through interstate distance education.
Institutions will no longer be able to serve students in states where the institution does not satisfy state educational requirements except under limited circumstances. This is worth repeating. Although institutions have been serving students across state lines by providing notifications and subject to any state approvals, of course, the institution must now only serve students in states where the institution does, in fact, satisfy the state educational requirements in the state where the student is located.
There are nuances to the statements provided above.
The Department has identified triggers for distance education to satisfy state educational requirements. The State Authorization Network (SAN) and many of its members have communicated directly with the Department designated contact for Certification Procedures, who has been very responsive.
We have learned through these communications that the Department maintains that if the student is participating in even ONE course by distance education at the time of initial enrollment, the institution is responsible for satisfying state educational requirements of the state where the student is located. This becomes complicated, especially for institutions that sit near a state line. The institution may have students crossing a state line to participate in the professional licensure program face-to-face on campus but take one online course that could even be a general education course or an elective.
Consider this scenario:
The moral of the story, the regulation to satisfy state educational requirements for the PPA is focused on a very specific point in time. Institutions near a state line may want to consider how to address this point in time for its commuter students.
As mentioned above, the regulation includes an option for institutions to serve a student where the institution does not satisfy requirements IF the student attests that they intend to seek employment in a different state and the institution can satisfy state educational requirements in that state. Please note that this is an option and may not be applicable for all students.
The Department indicated in the preamble that they addressed public comments regarding situations where a student is located temporarily in a state and intends to seek employment elsewhere. The Department indicated that they were not inclined for the student to simply provide an acknowledgment that they understand the institution does not satisfy state educational requirements where the student is located. However, the Department did accept that at the time of initial enrollment an attestation that the student indicates a specific state that they intend to seek employment, and the institution can satisfy state educational requirements of that state. There are caveats and nuances presented in the preamble.
Caveats & Nuances:
We urge institutions to proceed with caution and document well with the attestation option. The attestation is intended to be an option that is a legal acknowledgment of the STUDENT’S location choice for employment and a verification that proper process was followed. We have heard that there are some institutions offering students the choice of where the institution satisfies state educational requirements and encouraging the student to choose from that list and then attest to one of those states. Our opinion is that institutional direction is not the objective of this option in regulation, and we encourage institutions to focus on the voluntariness of the student’s intention of location to seek employment.
In preamble guidance, the Department indicated that they consider licensing compacts and multi-state agreements/reciprocity to all be forms of licensure. Therefore, it is unnecessary to capture this concept in the regulation. This creates an option in guidance to satisfy the requirements of the regulation. BIG CAUTION FLAG!
First, please note that we are not talking about reciprocity for institutional approval which we know as SARA. This type of reciprocity/agreement/compact addresses programs.
Second, the Department indicated that their policy concerns are addressed if the student can obtain a license through reciprocity that allows them to work in the state where the student is located (as covered by the requirements of the regulation). The Department also indicated that this could be through a full license or a provisional license. The main point is the ability to obtain employment without having to complete any additional requirements or go through a waiting period before being able to be employed.
Third, institutions should carefully review and understand the compact or multi-state agreement privileges and requirements particular to each license, so that the student’s ability to obtain the license in one state corresponds to the ability to be employed or transfer the license to another state. Just because the states are members of the agreement or compact does not necessarily mean that the particular license is transferable. Institutions must complete the research on the compact or agreement and document the implementation well.
The related notifications for educational programs leading to a license or certification have been slightly amended. Institutions must continue to provide public notifications and direct or individualized notifications. The only substantive change is that public notifications are now only required for states where the institution has determined that the institution meets or does not meet state educational requirements. The institution does not need to address all states and territories and is not required to publicly list states for which the institution has not made a determination on whether the institution meets state educational requirements.
The Department provided in the preamble that the notification:
“applies to the States where institutions are enrolling students and where they are either living at the time of initial enrollment or where they attest that they wish to live. If an institution is not enrolling students from a given State, it is not obligated to determine anything regarding that State; it just cannot offer the program to anyone in that State.”
To determine the educational programs which are subject to the notification requirements, the Department directed by email from the Department contact that the structure provided in the regulation applicable for notifications is also applicable for the programs that must be assessed for the PPA. The regulation found in 34 CFR 668.43(a)(5)(v) reads like a checklist that an institution can review to determine whether the program is applicable. This is especially important for programs that have optional licenses or have post-graduation requirements to obtain a license or certification.
We believe it is important to review each of your programs to determine if this regulation applies. We have added bullets and bolded terms in the language of the regulation below to show the checklist structure to determine the responsibility to provide notifications and programs subject to the new PPA requirements. The Federal Register announcement links are provided below for the language that will be put in the Code of Federal Regulations on July 1, 2024.
34CFR 668.43(a)(5)(v) as amended for July 1, 2024:
“If an educational program is
Additionally, direct, or individualized notifications are still required for prospective and currently enrolled students with no substantive change.
34 CFR 668.43 (c) as amended for July 1, 2024:
“(c)(1) If the institution has made a determination under paragraph (a)(5)(v) of this section that the program’s curriculum does not meet the State educational requirements for licensure or certification in the State in which a prospective student is located, or if the institution has not made a determination regarding whether the program’s curriculum meets the State educational requirements for licensure or certification, the institution must provide notice to that effect to the student prior to the student’s enrollment in the institution in accordance with § 668.14(b)(32).
(2) If the institution makes a determination under paragraph (a)(5)(v) of this section that a program’s curriculum does not meet the State educational requirements for licensure or certification in a State in which a student who is currently enrolled in such program is located, the institution must provide notice to that effect to the student within 14 calendar days of making such determination.”
On February 13, 2024, during a NASDTEC webinar, Department representatives indicated that an FAQ would be released based on the many questions posed to the Department on these regulations. On April 9, 2024, another Department representative at the NASASPS conference confirmed that an FAQ is still forthcoming. As of this writing, a Department representative has indicated that FAQ will be released in May. Therefore, our analysis is based on a review of the preamble and communications with the Department representative.
On April 9, 2024, the Department released an electronic announcement (GE-24-03) Updates on New Regulatory Provisions Related to Certification Procedures and Ability-to-Benefit. The morning of the release, the Department representative at the NASASPS conference indicated that this electronic announcement would soon be released and shared that it expressed the discretion of the Department when reviewing a set of new regulations that included the new requirements for programs to satisfy state educational requirements for the PPA. The flexibility offered was simply that an institution should document prior to the July 1, 2024, effective date the particular barrier to compliance that has been encountered that is outside of the institution’s control. Upon a review or audit, the Department could then consider whether this was acceptable reasoning to not comply by July 1, 2024. The Department added that these barriers should be overcome by January 1, 2025.
It should be noted that the announcement tended to refer to the institution obtaining approvals from state boards and difficulties obtaining approvals. We wonder if the Department understands that not all professions and states have approval processes to affirm that the institution satisfies state educational requirements to ensure with any legal certainty what the institution is required to certify for the PPA. We will note again that no input from licensing boards or communications was sought by the Department in the development of these rules. The Department shared in the preamble their opinion that the interactions with the professional licensing community were not warranted “… the Department has determined that the institutions should be the ones to work with States to determine if their programs have the necessary requirements for licensure or certification since they know their content and curricula. In making this regulatory change, the Department sought comment from all interested public stakeholders, and received and considered over 7,500 comments on these final regulations.”
Since the release of the final regulations, we have presented to many organizations, including the National Council State Boards of Nursing (NCSBN), National Association of State Directors of Teacher Education and Certification (NASDTEC), Council of State Governments National Center for Interstate Compacts, Council on Licensure, Enforcement and Regulation (CLEAR) and Association for Counselor Education & Supervision (ACES), and most were largely unaware of the development of these regulations. Just last week in conversation with one of these organizations, they thanked us for sharing the contact information for the Department. The organization intended to request a conference call with the Department to explain the state board processes and have a frank conversation regarding that state boards are not in a position to respond to requests for approvals or reviews of curricula for out-of-state institutions to address satisfaction of state educational requirements in the various states. Conversations of this type with a variety of professional boards would have been helpful before or during negotiated rulemaking committee meetings.
We encourage institutions to continue the research processes that they were doing to develop notifications and consider the following additional steps.
One last thought, we wonder if institutions should consider sharing these requirements with their various academic departments who may, in turn, share with state licensing boards in the home state of the institution. This could create grassroots opportunities for collaboration and more communication of requirements. Additionally, it would be helpful if institutions could connect and communicate more with their programmatic accreditors about these requirements.
Please make note of the following resources for institutions! The State Authorization Network (SAN) maintains a landing page on the SAN website dedicated to compliance requirements for programs leading to a license. Additionally, SAN has developed public-facing and member-only resources housed on the SAN website that address the complexities and help institutions develop compliance strategies. The SAN Professional Licensure Special Interest Team has recently updated the FAQ initially based on questions from the November 2023 SAN and WCET Webinar. SAN is developing a second edition for its Professional Licensure Handbook which is on hold until the Department shares its forthcoming FAQ. For research support, institutions may wish to consider a research license with the Higher Education Licensure Pros.
Finally, if you have additional questions about the regulations, we urge you to communicate directly with the Department’s designated contact, Vanessa Gomez: Telephone: (202) 987-0378. Email: Vanessa.Gomez@ed.gov.
When the Department’s FAQ is released, we will update all SAN and WCET members plus we will update the Professional Licensure Handbook which will be publicly available. Stay tuned!
