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.

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.

History of the Rules

Elements of the New and Amended Requirements

New Certification Procedures Regulation to Satisfy State Educational Requirements

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—

  • Is programmatically accredited if the State or a Federal agency requires such accreditation, including as a condition for employment in the occupation for which the program prepares the student, or is programmatically pre-accredited when programmatic pre-accreditation is sufficient according to the State or Federal agency;
  • Satisfies the applicable educational requirements for professional licensure or certification requirements in the State so that a student who enrolls in the program, and seeks employment in that State after completing the program, qualifies to take any licensure or certification exam that is needed for the student to practice or find employment in an occupation that the program prepares students to enter; And
  • Complies with all State laws related to closure, including record retention, teach-out plans or agreements, and tuition recovery funds or surety bonds;

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.

  1. The new rule is not retroactive as it applies to students enrolled on or after July 1, 2024. This is important as it means that there are no new barriers for the student currently enrolled to continue their program.
  2. The rule is narrowly focused on a very specific point in time – “the time of initial enrollment.” The institution’s obligation to satisfy state educational requirements is tied to the time of initial enrollment.
    • The responsibility of the institution to know the location at the time of initial enrollment should correspond to the structure of the institution’s process for determination of location as has been required by 34 CFR 600.9 (c)(2) since July 1, 2020.
    • In the preamble of the final rules, the Department indicated that they recognize that laws change, and students move. Therefore, although the institution satisfied state educational requirements at the time of initial enrollment, if there is a change of law or change of location, the institution may continue to serve the student. The institution must provide the required notifications as indicated below.
  3. The attestation option provided in the regulation directs that a student may be served even if the institution cannot satisfy state educational requirements where they are located IF the student attests that they intend to seek employment in another state and the institution can satisfy state educational requirements in that state. PROCEED WITH CAUTION!
a medical professional helping a patient

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:

  • A student is enrolled in a healthcare-related program that leads to a license for which all related courses are offered only on campus at George Washington University in Washington, D.C.
  • However, the student lives across the Potomac River in Arlington, Virginia, and commutes across the river and state line to class each day. (Commuting to DC from Virginia is not unusual)
  • The student is also enrolled in one online course in let’s say History of Rome for a general education course at the time of initial enrollment (in the first term).
  • The Department considers the location for the distance education course to be Virginia and therefore triggers the institution to be responsible for satisfying state educational requirements in Virginia.
  • Read that again if you need to.
  • If that same student enrolled in ALL courses only on campus at George Washington University in the first term and saves the online course in History of Rome until the next term, there would be no trigger to satisfy state educational requirements in Virginia because the next term would be after the initial time of enrollment.
  • Do not confuse this fact pattern with the situation where an out-of-state student moves to the state where the institution is located to be fully located in the same state or in this case, District of Columbia, to be a resident student. There is no trigger in this case.

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.

Attestation

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:

  1. The goal is sufficient proof from the students themselves of their plans.
  2. Need more than the mere presence of such an attestation alone.
  3. The Department is very focused on how the information was conveyed such that it must be clear that the student understands this attestation.
  4. No new attestation is required if the student moves or changes their mind about future employment location.

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.

Licensing Compacts and Multi-State Agreements

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.

Notifications Still Required

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

  1. designed to meet educational requirements
  2. for a specific professional license or certification that is
  3. required for employment in an occupation,
  4. or is advertised as meeting such requirements,
  5. a list of all States where the institution has determined,
  6. including as part of the institution’s obligation under § 668.14(b)(32),
  7. that the program does and does not meet such requirements;”

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.”

Department Guidance

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.

What Should Institutions Do?

We encourage institutions to continue the research processes that they were doing to develop notifications and consider the following additional steps.

  1. Revise or develop your institution’s location policy (required in federal regulation since July 1, 2020).
  2. Research state educational requirements where students are served by the institution.
  3. Compare & determine if the curriculum satisfies the educational requirements.
  4. Carefully consider the use of attestation (as this option is not for everyone and documentation is necessary).
  5. Continue to follow a process to provide public and direct notifications relative to the states where students are served.
  6. Communicate with senior administrators and general counsel to consider business decisions about institutional priorities to serve certain states and certain professions.

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.

Additional Resources

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!

Cheryl Dowd

Senior Director, State Authorization Network & WCET Policy Innovations


cdowd@wiche.edu

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