As we revealed in our recent post, ED’s New Proposed Regulations: Part 1, State Authorization Reciprocity, the Department of Education’s new package of proposed regulations includes issues that could have a big impact on institutions that offer programs in other states and upon the students they serve. While most press articles about the proposed rules focus on Gainful Employment, you will need to be aware of other nuanced issues also addressed in these proposed regulations that may have gone unnoticed during your first review. We are providing direction for you on very complicated sub-issues related to reciprocity and programs leading to a license or certification that are found in the Negotiated Rulemaking Issue, Certification Procedures. These important sub-issues aren’t the “sexy” regulatory issues getting most of the press coverage and could easily be overlooked.
It is important to reiterate that we support the consumer protection goals of the Department. We concur that it is very important to provide safeguards for students and protect the integrity of Title IV HEA programs. However, we do believe that in some circumstances there may be other ways to address the development of safeguards. This is especially true when there is a need to collaborate with state entities, such as state licensing boards, as partners to develop protections addressing programs leading to a state professional license or certification.
We encourage institution personnel to thoroughly review and discuss these additional proposed regulations to determine the impact on students at their institution. The Department invites the public to submit comments on the proposed regulations by the comment deadline of June 20, 2023. Additionally, the Department is seeking responses to directed questions posed throughout the preamble of the announcement for the proposed regulations. We will provide further information in this post on the process to submit comments. We encourage you to participate!
In Part I of our proposed regulations review, we offered the background on the rulemaking process and shared insight into the proposed regulations addressing reciprocity. Additionally, we offered background on the State Authorization Reciprocity Agreements (SARA) and the potential impact for institutions participating in SARA for purposes of state institutional approval for interstate distance education related activities.
Today, in Part II of our proposed regulations review, we will offer analysis of the proposed regulations addressing programs leading to a professional license or certification. This analysis will include background of the status of current regulations to then understand the new additional responsibilities including changes to the notifications. As with our previous post, to more easily read and direct you to specific regulatory language, we point you to specific pages of the unofficial version of the proposed regulations.
We know that these two posts are very dense. We hope that by indicating sections with sub-headings that you may review the information in bites. You may also wish to share these posts with colleagues to keep them informed about these issues that are not receiving much notice in the press, but may affect the institution’s work. Additionally, we hope that the information might help prepare you to develop your public comments.
Background on Federal Regulations for Programs Leading to a Professional License
State oversight varies widely by profession and state, but states have developed and maintain their own laws and regulations to protect the public and maintain the integrity of the licensed professions and occupations. Institutions are expected to follow all state requirements, as applicable, in the states where the student is located.
During the 2014 Department of Education Negotiated Rulemaking, the issue of Federal regulations for consumer protection for students enrolled in programs leading to a license was first addressed. The rulemaking committee did not reach consensus. Consensus means no opposition by the rulemaking committee members. Because the rulemaking committee did not reach consensus, the Department wrote the rules and released final regulations in December 2016. Among the regulations were required notifications for professional licensure programs completed solely through distance education, excluding internships and clinicals.
The effective date of these regulations was eventually delayed, then subject to a lawsuit, then became effective for thirteen months, and then replaced in July 2020 with the current regulations for notifications. Even with such drama, an important thing to note is that these 2016 regulations required public and individualized disclosures. Additionally, an important aspect that we greatly supported was that the institution was to obtain a written acknowledgement from a prospective student if the student received an individualized disclosure that the institution did not meet or had not made a determination whether the curriculum meets the prerequisites in the state of the student’s residence.
Please note that it was the Department that used the term “residence” rather than “location.” The terminology issue was corrected in the 2019 rulemaking.
The current Federal regulations, which came from consensus during the 2019 Department of Education Negotiated Rulemaking, expanded the notification requirement beyond “solely through distance education” to include all modalities, including in-person. The public notifications were also expanded to address all states and territories regardless of whether the institution was serving students in any additional states and territories.
For each state and territory, the institution is currently expected to provide public notifications to indicate whether the institution curriculum “meets,” “does not meet,” or “has made no determination” related to the state educational requirements to obtain a license. Additionally, the institution must provide individualized notifications to prospective and enrolled students under the prescribed circumstances. The regulations to provide these notifications became effective July 1, 2020. However, the written acknowledgement was not maintained.
What is now proposed?
The Certification Procedures issue is one of the five issues addressed in the newly proposed rule package. The items included in this issue are intended to address the process and criteria to go into a Program Participation Agreement (PPA), which an institutional leader signs to assure the Department that it will comply with the provisions of that Agreement to remain eligible to disburse Federal financial aid.
The Certification Procedures issue did not reach consensus during the Winter 2022 negotiated rulemaking. With no consensus, the Department wrote the proposed regulations for this issue and several others. As we mentioned in our previous post, these are proposed regulations which must be released as final regulations by November 1, 2023, in order for the regulations to become effective no earlier than July 1, 2024.
Institution responsibilities for programs leading to license, as proposed, include the following:
NEW! The institution “must determine” that the institution’s program “satisfies” educational prerequisites for professional licensure or certification where the student is located at the time of initial enrollment (p. 957-958) 34 CFR 668.14(b)(32).
REVISED! Public Notifications must include a list of all states where the institution is aware that the program does and does not meet such requirements (p. 981) 34 CFR 668.43(a)(5)(v).
You may be wondering if there are any proposed changes to the individualized notifications since the public notifications are proposed to indicate only “meet” or “does not meet” educational requirements. The individualized notifications were not addressed during the negotiated rulemaking process and there are no proposed amendments to the regulation offered. Therefore, the individualized notifications will remain the same as found in 34 CFR 668.43(c).
What is the Department’s reasoning for this proposal?
The Department shared on page 3 and on page 17 of the unofficial version of the announcement that the development of new regulations addressing Certification Procedures is to create a more rigorous process for certifying institutions to participate in Title IV HEA programs. The increased rigor is to protect the integrity of Title IV HEA programs and protect students from predatory and abusive behavior.
The announcement includes a quick summary of the proposed regulation subsection, 34 CFR 668.14(b)(32), on page 127. The summary indicates the following: “Amend § 668.14(b)(32) to require all programs that prepare students for occupations requiring programmatic accreditation or State licensure to meet those requirements and comply with all State consumer protection laws.” This language provides a concise statement to indicate institutions must determine if the program:
Is programmatically accredited, if required.
Satisfies all educational prerequisites for a professional license where the student is located (our issue of the day!).
Follows all consumer protection laws related to closure, recruitment, and misrepresentation.
We are very interested in the Department’s reasoning and concerns related to institutions satisfying state educational prerequisites for a professional license at time of initial enrollment, but found less development of rationale of this issue as compared to others in this proposed rule package. The announcement, on page 496, indicates the reasoning of this proposed language is that the Department is aware that institutions are enrolling students in programs that do not meet the educational requirements for a state license. The result, the Department shares, is that students are often left with difficulty finding employment and owing student loans for credentials that do not qualify them to work in the occupation for which they were educated. We agree that institutions should be following state requirements when applicable. We wonder if there is data addressing specific professions or regions to know the extent of student harm due to the institutions’ failures to meet applicable state requirements.
However, we are unclear about further analysis of this regulation subsection as described on page 780, which indicates the following: “On the first point, proposed § 668.14(b)(32) would make it harder for institutions to offer programs that lead to licensure or certification whose length far exceeds what is required to obtain the approvals necessary to work in that field in a student’s State.” The explanation continues to address overly long programs. We believe the Department may have conflated this issue with a previous subsection 668.14(b)(26) about the length of gainful employment programs leading to a license or certification.
A continuation of this possible conflation is found on page 784 when the Department indicates, “The proposed changes in § 668.14(b)(32) would provide benefits to students by reducing the likelihood of them paying more for education and training programs that artificially extend their program length beyond what is needed to earn the licensure or certification for which they are being prepared.” The proposed language of 668.14(b)(32) indicates meeting state educational prerequisites. We are not clear why the Department expressed that “§ 668.14(b)(32) would provide benefits to students byreducing the likelihood of them paying more for education and training programs that artificially extend their program length beyond what is needed to earn the licensure or certification for which they are being prepared.” This analysis by the Department does not seem to address satisfying state educational prerequisites.
We found no analysis addressing the language in the proposed regulation amendment to the public notifications in 34 CFR 668.43(a)(5)(v).
What Do These Proposed Responsibilities Mean and What are Our Concerns?
Institution must determine that the program satisfies educational prerequisites where the student is located at time of enrollment.
This increased responsibility requires the institution to meet a higher bar of compliance and go beyond notifications. The institution’s curriculum must now satisfy the state’s educational prerequisites in each state where the students are located at time of enrollment
During rulemaking in Winter 2022, the Department’s proposed language indicated that the institution must “ensure” that each program “satisfies.” This new proposal replaces the word “ensure” with “determine.” We do not believe that the word “determine” is less of a legal burden than “ensure.”
In order for the institution to “determine” that the program “satisfies” educational prerequisites with any sort of legal certainty, we believe that the institution will need to seek affirmation from state licensing boards in each state that the institution is serving a student. We have learned through speaking with various national organizations of state licensing boards that professions and states vary widely. Professions in some states do not have an approval process for an out-of-state institution’s program to affirm satisfaction of educational requirements.
During rulemaking in Winter 2022, we provided a public comment during week one. We asked the Department if they had met with state licensing boards to learn of the process and structure for approvals for programs. We then offered to make some connections between Department staff and licensing board organizations or state agencies.
We also wonder about the Department’s view if the student changes location. It appears from the language of this proposed regulation that the responsibility to satisfy educational prerequisites is only based upon the location of the student at time of enrollment. Does this mean that the program is still eligible for Title IV aid if the student is no longer located in a state where the institution has determined that it satisfied educational prerequisites?
Public Notifications must include a list of all states where the institution is aware that the program does and does not meet such requirements.
This amended language appears to indicate that the institution’s responsibility would only be to list specific states for which they know the program “does” and “does not meet” state requirements due to the addition of the phrase “where the institution is aware”. It appears that a determination of each state and territory would no longer be required, as is currently required in regulation. The “no determination” option is proposed to be removed as an option for the public notifications.
Please note that there is no proposed amendment to the individualized notifications.
This proposed language appears to lessen the institution’s public notifications to only the states where the institution has actual knowledge. This is different than the current regulations requiring institutions to address all states.
One may ask why the public notifications are necessary if the institution must determine that the program satisfies educational requirements in the state where the student is located at time of enrollment? Good question! There is no rationale offered for this amended language in the proposed regulations announcement, but we have a few thoughts.
The public notifications in this proposed form could provide notice to prospective students considering programs at various institutions. Additionally, the notifications could provide notice to enrolled students who may be considering a change of location. If a state is not listed in the public notifications, that is also notice to the students to be wary and ask questions about meeting requirements in states that are not listed.
The individualized notifications, however, should not be overlooked. The institution will remain responsible to prospective and enrolled students despite the institution’s responsibility to satisfy educational prerequisites where the student is located at time of enrollment. We wonder why the institution would accept a prospective student in a state where it does not satisfy educational prerequisites. However, it is reasonable to support an enrolled student with an individualized notification if the student is no longer located in the same state as at the time of initial enrollment.
We maintain that an institution must follow all state laws and regulations in a state where the institution’s activities occur. If program approval is required in a state, we have always directed the institutions to obtain program approval in addition to state authorization to serve the students in a state. However, we are aware that not all states and professions maintain an approval process for the educational programs of out-of-state institutions. Although the state may have specific educational prerequisites for a license, the states themselves do not all have an approval mechanism to provide any legal certainty that a program satisfies educational prerequisites.
Additionally, we believe that there are reasonable motivations for a student to participate in a program from a state that does not satisfy all of the state educational prerequisites where the student is located at time of enrollment, for example, a:
Student may be located temporarily in a state attempting to pursue education while in the state (ex. active-duty military or military dependent),
Student may wish to obtain the education from a specific institution due to its strong reputation,
Student may wish to make the determination of location for employment based upon workforce needs after completion of the program,
Student may wish to obtain the first license in the state where the institution is located and then transfer the license through professional license compact and professional license reciprocity options,
Student may be aware that they can receive a provisional license in the state with time to complete the remaining state specific courses (ex. Teacher education licenses in some states).
In consideration of these motivations and the concern for the inability to obtain any legal certainty to determine that the program satisfies educational prerequisites, we offer the following recommendation.
The following recommendation was developed during the Winter 2022 rulemaking in collaboration with two negotiators representing consumer advocate groups and veterans. The two negotiators submitted this language during the third week of rulemaking and was met with interest by several other negotiators but was not approved at that time by the Department. We believe that we ran out of time for due consideration of this compromise that provides student protection and student flexibility. Subsection (iii) was added to be applicable to professional licensure programs.
(ii) Assess and satisfy the applicable educational prerequisites for professional licensure or certification requirements in the State, if such prerequisites are available or can be obtained from the State,
(iii) Institutions may make case-by-case exceptions to enroll students in a program that fails to meet the requirements of (i) and/or (ii) by obtaining the prior signed written consent of each student who opts to knowingly enroll in such programs and states their reason for their decision.
The rationale of this recommendation was to provide some flexibility when there is not an approval process in a state as not to limit students’ choices due to the state’s oversight mechanism. Additionally, the recommendation intended to revive the former requirement of a written acknowledgement by a student for instances of reasonable motivations to participate in a program even if the program does not satisfy educational prerequisites.
We additionally would like to see the U.S. Department of Education engage with entities that coordinate with or oversee professional licensing boards to better inform them of concerns and requirements and to seek collaboration with state licensure boards to ultimately better serve the education and training of future licensed practitioners.
How Can you Participate in This Rulemaking Process?
As mentioned earlier, we hope that you will consider submitting a public comment. It is important for the Department to hear from the practitioners implementing rules to obtain your feedback whether it is in support of the proposed regulations or providing recommendations or asking more questions. We hope that we have provided information pertinent to your work in order to assess the impact on your institution or agency.
Institutional personnel, program personnel, or individuals may comment. For an institutional or programmatic comment, you need to navigate the proper government relations channels at your institution. Issues that receive a greater volume of content tend to receive more attention.
The Department has expressed interest in public comments and is specifically seeking responses to the directed questions found within the body of the announcement for the proposed regulations. On page 38 of the announcement the Department directly invites the public to assist them in complying with the specific requirements of Executive Orders 12866 and 13563 and their overall requirement of reducing regulatory burden that might result from these proposed regulations. To that end, they request the following:
Please let us know of any further ways we could reduce potential costs or increase potential benefits while preserving the effective and efficient administration of the Department’s programs and activities.
The Department also welcomes comments on any alternative approaches to the subjects addressed in the proposed regulations.
We have seen the benefit of public comment to this Department on two very specific occasions in the last year. First, the Department indicated that they were persuaded by public comment about proposed regulations that appeared confusing regarding an amended definition of Distance Education. In this case, the Department responded by removing the amended language for the final regulations. Second, we have seen the Department actively responding with amended Third Party Servicer guidance due to the more than 1,100 public comments received. We appreciate the Department’s consideration of the view from the members of the public who are the key stakeholders in these issues.
This is your opportunity to tell your stories of student and institutional impact, ask clarifying questions, show support for the language, express challenges that could have unintentional consequences on students, or raise other concerns. You are urged to be positive and provide helpful suggestions.
Public comment submission process
The Department provides the following instructions:
Deadline to submit public comments is Tuesday, June 20, 2023.
Information on using regulations.gov, including instructions for finding a rule on the site and submitting comments, is available on the site under “FAQ.”
The Department will not accept comments submitted by fax or by email or comments submitted after the comment period closes.
Remember to include the Docket ID at the top of your comments: ED-2023-OPE-0089
If you require an accommodation or cannot otherwise submit your comments via regulations.gov, please contact one of the program contact persons listed in the announcement. For certification procedures the contact person is Vanessa Gomez. Telephone: (202) 453–6708. Email: Vanessa.Gomez@ed.gov.
Stay tuned as SAN and WCET will continue to follow and update on this process. SAN developed a webpage, U.S. Department of Education Rulemaking 2021-2022 Information, that follows all of the steps related to this rulemaking including this most recent release of proposed rules. There you will find access to resources including previous posts capturing the development of the regulations.
We recognize that the concerns we raised came from a small subsection of an issue with big implications. This subsection is complicated and seems to be flying under the radar of many. We are providing our best understanding of the Department’s announcement and recognize that we are continuing to learn as well. We wanted to share our impressions to attempt to simplify your work to find the information you need. Don’t forget to examine this post and Part I to share with others at your institution or organization…and submit a comment!
We are considering publishing an additional post (Part III) with more information and/or other communications to members or the public to address a few more aspects of the proposed rules for which we are concerned are not getting enough review.
…..and we are all back in the States at our respective desks and ready respond to your questions and observations!
Cheryl joined WCET in August of 2015 as the director of the State Authorization Network. She currently serves as the senior director, policy innovations. She directs the overall activities of WCET’s State Authorization Network (SAN), including coordination of staff addressing interstate policy and compliance, along with other ancillary compliance issues. As senior director, Cheryl also serves the overall WCET membership in addressing emerging and special regulatory issues related to digital learning in postsecondary education. She brings extensive experience in education and compliance to the WCET team and is a contributing author for State Authorization of Colleges and Universities, a guidebook for understanding the legal basis for State and Federal compliance for activities of postsecondary institutions.
Cheryl holds a Juris Doctorate from the University of Richmond, a master’s degree in criminal justice from Bowling Green State University, and a bachelor’s degree in political science from James Madison University. She is the mother of four kids, all of whom have been instrumental in helping her develop new interests in theatre, hockey, and figure skating. Outside of work, Cheryl enjoys spending time with her family and is an avid fan of movies and TV shows written by Aaron Sorkin.
Russ Poulin is the executive director for WCET. He directs the team’s work in supporting the efforts of postsecondary institutions from all 50 states with a focus on the policy and practice of digital learning. He is a highly sought-after expert and leader regarding policy issues for distance education and on-campus uses of educational technologies. As WICHE vice president for technology-enhanced education, he advises on policy and projects for the regional higher education compact. Russ’s commitment to the field is continually noted, and he was honored to have represented the distance education community on federal negotiated rulemaking committees and subcommittees. Russ has received recognition from the Online Learning Consortium (OLC), the Presidents’ Forum, Excelsior College, and the National University Technology Network (NUTN) for his contributions to postsecondary digital education and educational policy.
Russ received his bachelor’s degree from the University of Colorado Denver and holds a master’s degree from the University of Northern Colorado. For no discernible reason, Russ also writes movie reviews for WCET members. As a movie enthusiast, Russ is most fascinated with characters and plots that surprise him. In addition, Russ is a recovering trivia guy who is also partial to cats and to his wife, Laurie.