U.S. Department of Education Proposed Regs: Increased Responsibilities
They are finally here! The U.S. Department of Education officially released proposed regulations that cover professional/occupational licensure and certification on Friday, May 19th. We have been tracking this issue since it was unexpectedly introduced during negotiated rule-making last year. You can review our blog posts from February 2022 and March 2022 for more information.
The proposal includes sweeping changes in a number of different areas for Title IV of the Higher Education Act. While the professional/occupational licensure and certification changes are a small fraction of the total, they will have a significant impact on your institution. If this proposal is adopted, institutions will need to know if their programs meet educational requirements for licensure in all 59 U.S. states and territories.
Don’t have time to read this whole post? What you need to know now:
New, increased responsibility–only offer programs where “meets”: All institutions must determine that each program eligible for Title IV program funds satisfies the educational prerequisites for professional licensure or certification for each state/territory where the institution is located or in which the student is located at the time of enrollment.
Public Disclosures still required: “Meets” or “does not meet” public disclosures are still required (likely for all 59 U.S. states/territories), but “no determination made” is no longer an option.
Individual Disclosures not changed: Conflict with individual disclosures and new increased responsibility, as prospective students located in “does not meet” states/territories will not be eligible to enroll in a Title IV program.
Satisfies isn’t Ensure, but Still a Challenge
During negotiated rulemaking in 2022, the Department proposed language that would have required institutions to “ensure” that licensure programs meet all educational requirements for licensure. Fortunately, ED seems to have heard negotiators that raised concerns about “ensuring”, in particular, that it simply would not be possible without a significant change in the processes that licensing boards/agencies utilize to evaluate curriculum or a complete overhaul of licensure requirements.
ED has proposed a new standard that all Title IV participating institutions will need to meet. Institutions will need to certify through the Title IV Program Participation Agreement (PPA) that all licensure programs meet educational requirements in the location of the institution and students at the time of enrollment.
New PPA Requirement
The Program Participation Agreement (PPA) sets the terms and conditions for all institutions that participate in Title IV financial aid programs. Institutions must explicitly agree to do (and not do) certain things as part of the PPA. As they indicated during negotiated rule-making last year, the Department is proposing adding a new section, that relates to accreditation, licensure/certification, and consumer protection. Each of these is important and impactful, but I’m focusing only on the licensure-related requirements in this post. If you were following negotiated rule-making last year, you know that ED introduced language that would have required institutions to ensure licensure. The good news is that ED has scrapped “ensure”! The bad news, most institutions have thousands of hours of work ahead of them to comply with this proposed language.
The proposed language for this new section is as follows:
—34 CFR § 668.14(b)
(32) In each State in which the institution is located or in which students enrolled by the institution are located, as determined at the time of initial enrollment in accordance with 34 CFR 600.9(c)(2), the institution must determine that each program eligible for title IV, HEA program funds—
(ii) Satisfies the applicable educational prerequisites for professional licensure or certification requirements in the State so that a student who completes the program and seeks employment in that State 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
Satisfies
Because ED has not defined “determine” or “satisfies”, two key terms in this new requirement, we can look to their common usage for insight. Oxford English Dictionary defines “determine” as “firmly decide,” or “ascertain or establish exactly, typically as a result of research or calculation.” Merriam-Webster Thesaurus includes the following synonyms for “determine”; “decide, conclude, and judge.” Oxford English Dictionary defines “satisfy” as “adequately meet or comply with (a condition, obligation, or demand),” or “fulfill (a desire or need).” Merriam-Webster Thesaurus includes the following synonyms for “satisfies”; “fulfills, achieves, meets, and complies with.”
Using these plain definitions, it seems that an institution could comply with this new section if it engages in the research of “educational prerequisites for professional licensure or certification” for each state and territory where their prospective students are located, has a knowledgeable subject matter expert compare the programs’ curriculum to those requirements, and concludes that the program fulfills or meets the prerequisites. Keep in mind there are other requirements for licensure outside of an academic program, such as supervised experience, examinations, and state-specific training that will not be part of any program.
Location
During negotiated rule-making discussions last year, the Department indicated that it is not their intention to require institutions to consider student location after the time of enrollment. They added language (“as determined at the time of initial enrollment in accordance with the requirements in 34 CFR 600.9(c)(2)”) to their original proposal to clarify their intent. In other words, if a student starts a licensure program located in a state where the institution does satisfy educational requirements for licensure, the student could remain enrolled, and utilize Title IV funds, even if they relocate to a state where the institution does not meet requirements and as a result, could not offer the program under Title IV.
The Department’s added language reinforces that location is set by each institution, per their own policy, as outlined in 34 CFR 600.9(c)(2). Several negotiators commented that the location should be where the student receives the education. The Department did not confirm this approach but pointed back to 34 CFR 600.9(c)(2), which states:
(i) For purposes of this section, an institution must make a determination, in accordance with the institution's policies or procedures, regarding the State in which a student is located, which must be applied consistently to all students.
(ii) The institution must, upon request, provide the Secretary with written documentation of its determination of a student's location, including the basis for such determination.
(iii) An institution must make a determination regarding the State in which a student is located at the time of the student's initial enrollment in an educational program and, if applicable, upon formal receipt of information from the student, in accordance with the institution's procedures, that the student's location has changed to another State.
While this approach to location is consistent with other Department requirements under the Title IV program, it will inevitably lead to a patchwork of location policies and uneven distribution of Title IV funds.
Exams
Interestingly, the Department has chosen to link the licensure requirement in (32)(ii) to qualify to take a licensure or certification exam. This does raise questions, as some license types allow anyone to take the licensing exam at any point in time, even prior to completing any courses/program. For example, many states allow anyone to register for the P-12 educator license/certification exams. In other instances, such as Certified Public Accountants, many states allow applicants to sit for the exam prior to completing the full amount of credits and coursework required for certification or licensure. There are also examples of some states that do not require an exam for certification or licensure. From discussion during the negotiated rulemaking sessions, it seems that the Department’s intent is really to require programs to satisfy educational requirements for licensure or certification, however, no clarity was provided with the supplemental information released with this proposed regulation.
Impacts for Institutions
Practically, proposed 34 CFR § 668.14(b)(32)(ii) will limit an institution’s ability to enroll students using Title IV to only those states/territories where the institution knows that the program meets educational requirements for licensure or certification. This presents several challenges to all institutions and, in particular, could have a significant impact on distance learning.
First, licensure/certification requirements vary, sometimes widely, from state to state. Understanding each state’s requirements and aligning the institution’s curriculum with the educational prerequisites takes a significant amount of time and effort. The process is very time-consuming and requires a certain level of expertise.
Based on our experience doing this work with institutions of different types and sizes, research and curriculum comparison takes between 6-12+ hours per state/territory. Someone with research experience who can locate and interpret statutes, regulations, rules, and policy manuals needs to complete this work, along with the curriculum subject matter experts (likely faculty). Assuming prospective students are located in at least 10 states, this adds up to 60-120+ hours of research for one license type. For institutions with a nationwide reach, this increases to 306-612+ hours per license type. Most institutions have at least 10 license-related programs, and some many more, resulting in anywhere from 600-6120+ hours of work for the initial research and comparison. Keep in mind, these requirements can and do change over time, so this will need to be an ongoing process. Institutions will need to dedicate additional resources to this work. Research tools, such as The Bookmark, can be helpful as institutions work to determine where their programs meet educational requirements for licensure.
Second, most state licensing boards and agencies limit their guidance to institutions. Generally, each individual license applicant (program graduate) is assessed by the board at the time of their license application. While individual graduate licensing outcomes are useful information, it likely is not sufficient to “determine” that a program “satisfies” all educational requirements. This is especially true when you factor in the length of time after graduating that it takes many professions to be licensed. State licensing boards and agencies do not typically have a process in place for evaluating and/or approving out-of-state programs. As a result, institutions cannot rely on program evaluations from licensing boards and will need to complete the thorough research and careful curriculum comparison outlined above to make their own determinations.
Bottom line, institutions are looking at many additional hours of research, curriculum comparisons, reviews, and updates to maintain ongoing PPA certification compliance for all licensure-related programs under this proposed regulation. Institutions offering distance education to students in many states will experience the greatest burden.
New Exam Performance Measure
As if the new PPA requirements proposed in 34 CFR § 668.14(b)(32)(ii) aren’t enough, the Department’s proposal includes another new section that applies to all programs that participate in Title IV. This section outlines the information that the Department can consider when issuing new PPAs or continuing existing PPAs.
This new proposed section reads:
—34 CFR 668.13 Certification procedures. (e) Supplementary performance measures. In determining whether to certify, or condition the participation of, an institution under §§ 668.13 and 668.14, the Secretary may consider the following, among other information at the program or institutional level: (v) Licensure pass rate. If a program is designed to meet educational requirements for a specific professional license or certification that is required for employment in an occupation, and the institution is required by an accrediting agency or State to report passage rates for the licensure exam for the program, such passage rates.
Proposed section (v) will not cover all licensure programs, as not all states or accreditors require reporting of exam passage rates. However, many do. The Department has not defined any thresholds for rates or otherwise indicated if/when a certain passage rate would create an issue for the institution’s eligibility.
Determinations Required for Disclosures
Public Disclosures
Public disclosures are still required but with a notable change. Under ED’s proposal, institutions can no longer indicate “have not determined” or “no determination made” in their public disclosures. As many institutions are currently relying on this option afforded to them by current federal regulation, this change will require significant investments in licensure research and curriculum comparisons.
The proposed changes are:
—34 CFR 668.43(a)(5)(v) If an educational program is designed to meet educational requirements for a specific professional license or certification that is required for employment in an occupation, or is advertised as meeting such requirements, a list of all States where the institution is aware that the program does and does not meet such requirements.
During negotiated rulemaking discussions in 2022, the Department commented that under the new section 34 CFR § 668.14(b)(32)(ii), institutions will have to be aware of where the program meets and does not meet requirements, therefore the public disclosure should encompass all states/territories. ED has not addressed how this proposed change for public disclosures relates to 34 CFR § 668.14(b)(32)(ii) in their commentary, and as a result, “where the institution is aware” will be subject to different interpretations and could result in inconsistent disclosures. In light of ED’s comments during negotiated rule-making, and because public disclosures are currently required for all 59 U.S. states and territories, our current recommendation is that institutions should plan to disclose for all.
The hours outlined above will apply to all institutions for the purposes of creating and maintaining public disclosures under ED’s proposal. Alternatively, some institutions may choose to indicate “does not meet” for many states/territories without actually completing the research and comparison. This will be a disservice to students and could raise misrepresentation issues.
Individual Disclosures
The Department has not proposed any changes to the existing individual prospective student and student disclosures required under 34 CFR 668.43(c). If the changes to public disclosures are adopted, as currently drafted, or if there are different changes made to the public disclosure requirement, there will be a mismatch and conflict between the public disclosure and individual disclosure requirements. Most notably, these disclosures are only required for prospective students located in states/territories where the program does not meet the educational requirements (or no determination made). Institutions will only be able to offer programs to prospective students located in states/territories where the program meets educational prerequisites under the new 34 CFR § 668.14(b)(32)(ii).
Other Licensure-Related Sections
Several other proposed sections include new licensure-related requirements. We may address these in detail in future blog posts.
Some examples are:
Gainful Employment; with a new clock hour limitation and data reporting for the metropolitan statistical area.
Clinical Internship/Externship; new 45-day placement window that puts responsibility on institutions for securing sites.
What’s Next?
Keep in mind these are all proposed changes and additions to the regulations, and you have an opportunity to influence the final version.
Anyone can submit a public comment through regulations.gov. You can submit on behalf of yourself or your institution. Of course, make sure you have the right approvals to submit a comment on behalf of your institution. You may also want to consider contributing to comments by an association or organization. Comments are due by June 20, 2023. The Department must consider all comments received during this public comment period and will publish responses with the final regulations.
If the final language is published by November 1, 2023, it will be effective July 1, 2024.