Negotiated Rulemaking Underway
Another round of U.S. Department of Education Negotiated Rulemaking began in January and will continue through March. Late last year, the Department announced that the Institutional and Programmatic Eligibility Committee will address seven topics, including Certification Procedures for participation in title IV, HEA programs under 34 CFR § 668. Licensure disclosures (both public and individual direct) have been required under 34 CFR § 668 since July 1, 2020. The Committee just wrapped up their second session, of three, on February 18th.
Raising the Stakes - A New Requirement
The second proposal from the Department is different from the first. However, both contain a new section in the Program Participation Agreement Certification. Note that these draft proposals are a starting point for committee conversations and the committee is not obligated to follow the Department’s proposals.
The second Department proposal includes:
§ 668.14(b)(32) In each State in which the institution is located or in which students enrolled by the institution are located, the institution must ensure that each program— (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.
At this point, the Department has not defined “ensure” or offered explanation as to what the expectations for institutions would be to qualify to certify.
Practically, this new section seems to limit an institution’s ability to enroll students to only those states/territories where the institution knows that the program meets educational requirements for licensure or certification. Online programs would certainly feel the greatest impact of this new section, by limiting enrollments to only those states/territories that they can “ensure” licensure requirements are met. But this section technically applies to all types of institutions delivering education through all modalities. This means that public, private, and proprietary traditional campus-based programs will also need to “ensure” that their programs meet licensure requirements in all states/territories where students enrolled by the institution are located. Because students can be located in another state when they first consider and enroll in a traditional, campus-based program, this current proposal would have implications beyond online programs.
Bottom line, as drafted, this section will create new confusion and challenges for all institutions.
The negotiators were split on this proposal. Several negotiators, including those representing private and public 4 year institutions, commented that the existing disclosure requirements were sufficient to protect students and that this new section would place an incredible burden on institutions. They noted that it would require cost-prohibitive research and program curriculum changes, which would increase tuition cost and time to complete the program. In some instances, it would require closing programs in those states, limiting student choice. Other negotiators pointed to examples of how the current disclosure requirements are not protecting students, with specific institutions/programs enrolling students located in other states, knowing that those students will not meet educational requirements for licensure.
Department representatives indicated that because these types of programs are being offered specifically to secure licensure or certification, that it is incumbent on those institutions that offer outside of their state (primarily online) to know if educational requirements for licensure are met. In the Department’s view, these institutions are choosing to offer the programs in other states, and therefore choosing to take on any additional burdens to “ensure” that the programs meet licensure requirements.
Limiting Options - Changing Existing Public Licensure Disclosure Requirements
The current public and individual direct student disclosures requirements are in 34 CFR § 668.43. The Department has proposed changes to the public disclosure requirement.
The second Department proposal includes:
§ 668.43 Institutional information. (a) Institutional information that the institution must make readily available to enrolled and prospective students under this subpart includes, but is not limited to - * * * (5) The academic program of the institution, including - (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 offers the program and where the program meets such requirements and a list of all States where it does not meet such requirements.
Under the Department’s second proposal, there is no longer an option for institutions to indicate “has not determined” for a state/territory. This means that programs would need to definitively indicate if their programs meet or do not meet educational requirements for licensure. The institution would also need to provide a list of all states/territories where the program is offered.
Negotiators raised several questions about the Department’s proposed language. How does this disclosure requirement relate back to the new proposed PPA Certification requirement? Is a traditional campus-based program only offered in the state where the campus is located? Or does a prospective student's location prior to enrollment determine where the program is offered? Does the institution need to list if it meets/does not meet for all states/territories, or only those where students are currently located?
Department officials indicated they would take these questions back, and evaluate if disclosures should be required along with the new PPA Certification section.
I noted that all but one negotiator was in support of or neutral to this particular Department proposed section.
As a side note, 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 in 34 CFR 668.43(a)(5)(v)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.
Stay Tuned
March 14-18, 2022 is the third and final scheduled session for the Programmatic Eligibility Committee. If the negotiators do not reach consensus, then the Department will be able to move forward with their proposed changes, different changes, or no changes at all. Effective dates for any changes or new requirements would likely be in 2023 or 2024.
The Federal Negotiated Rulemaking webpage contains updated information on the negotiators, the documents they consider, the schedule for meetings, and recordings of those meetings. Licensure is one of many important issues that the Department and negotiators are considering that could result in major changes to the types of institutions that can offer certain programs, while creating a new level of protection for students using title IV HEA financial aid.