Final ED regulations: October Tricks or Treats?
As any horror film fan knows, the anticipation of a scare is often the most intense, terrifying part. We have all been waiting in anticipation (hopefully not terror) since May 2023 when the U.S. Department of Education (ED) released its proposed regulations related to professional and occupational licensure. Our wait ended this week.
On a fittingly frightening day, October 31st, ED officially released the final version of regulations covering professional and occupational licensure. These include a few potential tricks– unexpected changes from the proposed language that colleges and universities need to carefully consider. But don’t be scared, as ED has provided some treats that should help most institutions comply and continue offering licensure programs to students located in other states.
The final regulations and supporting commentary from ED are not crystal clear, even contradicting for some sections. With this being a very recently released regulation, hopefully, more information and guidance will be available over time. We are providing our best analysis and interpretation based on what we know today, which could change as more information or guidance becomes available.
Without further ado, let’s get to the gory details!
ENROLLMENT RESTRICTIONS - PPA CERTIFICATION
A new requirement (34 CFR § 668.14(b)(32)(ii)) was added to the list of assurances that an institution provides through Title IV Program Participation Agreement (PPA) certification. This is the most impactful of the licensure-related changes.
Starting July 1, 2024, each institution must certify that any program that prepares students for licensure (or state certification) meets educational requirements
Where the institution is located, AND
Where distance education students are located (or where distance education students attest to plan to be employed after completing the program)
If an institution cannot certify that the program meets all educational requirements where the institution is located and where distance education students are located (or attest to seeking licensure/employment), then the program is not eligible for Title IV program funds.
Student location policies and determinations are even more critical under this new PPA certification requirement. The regulation and related comments indicate that student location should be determined at the time of initial enrollment as specified in 34 CFR 600.9(c)(2)(i), the same standard as the current disclosure requirements. Student location is not prescribed, rather each institution must have a student location policy and related processes in effect, apply those consistently across the institution, and make available to ED if requested.
Sounds a bit terrifying, doesn’t it? The ability to enroll students is now directly tied to the institution knowing that your programs meet licensure (or state certification) requirements. Institutions must do the work to understand other state/territory requirements, compare their programs, and conclude that the programs meet educational requirements. And this is complicated, time-consuming work that requires a team effort to complete.
Don’t worry, it is not all scary tricks. ED delivered some sweet treats this week by including a few unexpected provisions – fun and full-sized – that should decrease the burden of this new regulation and make compliance possible.
Changes from Proposed Regulations
First, in their commentary, ED indicates that any student who will be attending a licensure program face-to-face, on-campus can be considered to be located on-campus. In other words, the actual location of that prospective student who will be moving to campus for classes does not need to be factored in at the time of enrollment. This will greatly simplify the PPA certification for programs that do not include distance education.
Another treat, ED’s commentary indicates that institutions only need to certify for the time of initial enrollment of a student. If a student enrolls while located in a “meets” state or territory, but later moves to a “does not meet” location, that student could stay enrolled and eligible for Title IV. The program would remain Title IV eligible. Along the same lines, if a state/territory changes requirements so that a program no longer “meets”, institutions do not have to disenroll current students located in that state/territory. However, the institution would have to stop new enrollments or very quickly change their program to meet the new licensure requirements.
ED also signals in their comments that institutions may be able to rely on licensure compacts or reciprocity agreements when determining a program meets educational requirements. Their specific example includes teacher licensure, specifically when a teacher preparation program graduate can utilize a license from the state where the program is completed to meet state B’s educational requirements for a provisional license. This graduate may still need to complete a course or two specific to state B’s history or culture, but, they will be able to find employment as a teacher using the provisional license. While this recognition of licensure compacts and reciprocity makes sense, it isn’t clear how broadly ED is willing to extend these provisions.
The final surprise is what may be equivalent to a full-size candy bar for some institutions. A distance education student who is located in a “does not meet” location can still enroll if they are provided with information about licensure and attest that they will seek employment in a designated “meets” state/territory. ED states “(t)he Department would be looking for information about how the information about eligibility was conveyed to the borrower, such that they did understand their attestation.” This means that institutions should be able to create an attestation process, including conversation about licensure and additional documentation, to continue enrolling students from “does not meet” locations whose ultimate goal is to be licensed/employed in a “meets” state or territory. In other words, a check box or short automated form will not cut it, but if institutions are willing to create a robust process for education and attestation, they will not have to lose these enrollments.
DISCLOSURES
Both public and individual direct disclosures are still required, however, ED made a few changes in an effort to better align with the new PPA certification requirement. These changes are a mixed bag, mostly treats with a couple of surprising tricks.
Public Disclosures (34 CFR § 668.43(a)(5)(v))
Starting July 1, 2024, public disclosures will need to include a list of states/territories where the program “meets” or “does not meet” requirements for licensure (or state certification). The “no determination made” category is no longer included. The biggest departure from current regulation is that ED’s focus seems to be on distance education students. ED’s comments appear to indicate that a face-to-face, campus-based program is no longer required to provide disclosures for all 59 U.S. states and territories, if the institution considers all of these students to be located on campus.
Because institutions will have to make a “meets” determination where the institution is located and where distance education students are located (or where distance education students attest to plan to be employed after completing the program) to comply with the new PPA Certification requirement, we should expect all states/territories where students are being enrolled to be listed as “meets” on the public disclosure. Effectively, the “does not meet” list will be the state(s)/territory(s) where enrollments have been restricted or where the institution is aware that the program does not meet requirements.
Individual Direct Disclosures (34 CFR § 668.43(c))
Prospective Students
The new regulation language and ED’s comments indicate these are required for distance-education prospective students located in a “does not meet” or “has not made a determination” state/territory where the prospective student is located. As with the current disclosure requirements, these must be sent prior to initial enrollment in the program. Note that any prospective student receiving this disclosure would need to go through the attestation process and attest to seeking licensure/employment in a “meets” state in order to enroll.
Current Students
The new regulation language and ED’s comments indicate these are required for distance education students if the program becomes “does not meet” in the state/territory where the student is currently located or if the distance education student moves to a “does not meet” location. These must be sent within 14 days of making such determination–no change from the current regulation. Note these students would not lose access to Title IV funds and can continue being enrolled in the program.
For both public and individual direct disclosures, ED commentary indicates that they are concerned about students having access to the licensure information they need to choose the right program to meet their employment needs (and as a result, effectively use taxpayers dollars). By eliminating the “no determination made” list, and the need for face-to-face campus-based programs to disclose, less information will be provided to prospective students. This doesn’t seem like a trick, but institutions should be aware of the underlying goal for these regulations–student consumer protection. It would seem complying with new disclosure requirements may not go far enough to safeguard institutions against a Misrepresentation or Borrow Defense to Repayment claim.
Like any good horror film, we are left with some confusion and unanswered questions at the end. We hope to provide a sequel blog post in the coming months after additional information or guidance is made available.
To that end, the Federal Register announcement includes the contact information for the ED staff member addressing this issue. For certification procedures: Vanessa Gomez. Telephone: (202) 987-0378. Email: Vanessa.Gomez@ed.gov. All institutions are encouraged to submit questions.
Some of the questions we will be asking:
Distance Education definition. The most important, and least clear, definition from this new requirement is distance education. There is an advantage to not categorizing a student as enrolled in distance education, as any non-distance education prospective student can be treated as located where the campus is located. With multiple definitions from multiple sources (ED, accreditors, and others), including the May 2023 Dear Colleague letter that indicates that “a student is ‘enrolled in distance education’ if the student enrolls in at least one course offered through distance education.”, clarification from ED is critical. What criteria or thresholds should institutions use to classify programs for this purpose?
July 1, 2024 effective date. Depending on the institution’s policies and procedures for “initial enrollment”, some prospective students could complete the admission process prior to July 1, 2024 (including payment of tuition/fees) but not be considered enrolled until starting classes until after July 1, 2024. Do these students fall under new requirements?
Attestation process and requirements. ED’s comments seem to imply that specific information or documentation may be required for an attestation. What should be included? Must it be one single state/territory? What about scenarios with multiple states as possibilities (which happens often for military affiliated), students who plan to seek employment in whatever state(s) they have job opportunities after graduating, or those that just don’t know?
Reciprocity considerations. How far is ED willing to extend this? Can it be any compact or reciprocity agreement that facilitates licensure in other States or does it need to be specific for recent graduates (in other words, not compacts or reciprocity agreements that apply to licensed professionals with experience)?
NEED HELP?
While changes to licensure responsibilities are significant under these new regulations, colleges and universities don’t need to hide in fear! It is possible to know that programs meet educational requirements in other states/territories. The work starts with researching requirements in every state/territory where students are being recruited or enrolled. We have created The Bookmark – the one-stop licensure research library – to support institutions with this time-consuming, complicated research. We are happy to share this tool and how it can support compliance efforts leading up to July 1, 2024 and beyond. Register for an upcoming information session to learn more.
Current The Bookmark members, we will be providing additional updates and webinar opportunities over the coming months. Stay tuned!
Important note: This information is provided by Higher Education Licensure Pros LLC based on our experience working with licensure issues. We are not a law firm. The information provided does not, and is not intended to, constitute legal advice; instead, all information, content, and materials provided are for informational purposes only. Risks to the university/college and students should be considered and evaluated with legal counsel prior to creating policies and communicating licensure information to prospective students/students.