It seems like the complexity of compliance requirements increases each year. Luckily, we have WCET staff to provide updates on education regulations as we need them. Today, Cheryl Dowd, our Director of the State Authorization Network (SAN), is here to discuss requirements for professional licensure notifications and requirements for disclosures for out-of-state courses and/or programs. I appreciate Cheryl’s reminder that the focus of our programs and our compliance with these regulations is student academic success.
Thank you Cheryl for walking us through these requirements.
Enjoy the read and enjoy your day,
Lindsey Downs, WCET
Why must institutions provide notifications and disclosures regarding professional licensure to students participating in courses and programs outside of the home state of the institution?
As an institution of higher education, faculty and staff should strive to serve the students to the best of their ability in helping those students reach academic success. This goal includes the institutional motivation to provide the information needed for the student to pursue his or her chosen career.
That responsibility extends beyond the completion of the education program to helping the student understand the steps necessary to meet the prerequisites for that career.
Compliance requirements, with the variety of regulatory agencies, entities, and boards for the out of state activities of our institutions, seem to be increasing in complexity. In addition to compliance, we need to be observant of the legal and moral obligations to our students. How do we separate these obligations and address them? We will provide four motivations for the institution to provide information and processes that serve the student to achieve their intended academic and career goals:
- Regulatory obligation.
- SARA obligation.
- Liability mitigation/avoidance for the institution.
- Institution’s moral obligation for the student.
As of this date, there are currently enforceable Federal regulations regarding Misrepresentation. Additionally, there are released Federal regulations that require public and individual notifications to students for distance education programs offered outside of the home state of the institution. These new required notifications are to be in place by July 1, 2018, when the released Federal regulation becomes effective.
The Federal Misrepresentation regulations maintain that an institution participating in Title IV HEA programs, must not engage in substantial misrepresentation. Misrepresentation is defined in 34 CFR 668.71 to include any false, erroneous, or misleading statement to a prospective or enrolled student and “substantial misrepresentation” is any misrepresentation on which a person could reasonably be expected to rely, or has reasonably relied, to the person’s determent. This definition has been interpreted to include passive omissions leading to misrepresentation in addition to active statements.
The Misrepresentation Federal regulation further addresses, in 34 CFR 668.72, the variety of types of misrepresentation regarding educational programs. The variety of types of misrepresentation by the institution, listed in the regulations, includes whether successful completion of the course instruction qualifies the student to pursue licensure, certification, or conditions to secure employment in a recognized occupation for which the educational program is represented to prepare the students.
In addition to Federal Misrepresentation regulations, the released new Federal regulations for state authorization of distance education (with an effective date of July 1, 2018) includes required public and individual notifications and disclosures for prospective and enrolled students participating in a solely distance education program and residing in a state in which the institution is not physically located (proposed new section 34 CFR 668.50). Among the required notifications is the disclosure of applicable educational prerequisites for professional licensure and certification for that program in the state which the student resides. Additionally, the institutions must decide whether the program meets the applicable educational prerequisites.
If the program does not meet the educational prerequisites, a statement to that effect must be made and an Individual disclosure made to the student. If the student decides to enroll anyway, the institution is required to obtain written acknowledgement from the student that she or he received the disclosure.
Therefore, a Federal regulatory obligation exists to provide professional licensure notifications and disclosures to prospective and enrolled students if the institution participates in Title IV HEA programs.
The State Authorization Reciprocity Agreement (SARA) addresses the SARA participating institution’s obligation to provide all students, applicants, and potential students who have contacted the institution as to whether the course or programs meets state licensing requirements. Section 5.2 of the SARA Manual indicates that SARA has no effect on professional licensing requirements.
However, it places an additional obligation on the institution to be forth coming about whether the course or program leading to professional licensure meets the requirements in the state where the student resides. The student must be provided this information in writing. If the institution, after due diligence, is unable to confirm whether the course or program meets the requirements, the institution must provide the contact information for the licensing board and advise the student to determine whether the program meets the requirements where the student lives. Some institutions have decided that they need to little work in determining licensing requirements and can leave that responsibility to the student. Discussions with SARA leadership indicate that the student option is a last resort after the institution has exhausted its options in determining the applicability of its program to a license or certification.
Liability mitigation/avoidance for the institution
From a private legal action standpoint, one may assert that the institution bares responsibilities for a program leading to professional licensure. In exchange for the student’s tuition, the institution has a contractual obligation to offer the programmatic aspects that lead the student to pursue the post educational steps (examinations, applications, etc.) to the profession as designated by the licensure board. The inability of the institution’s program to provide the required prerequisites could be a breach of contract unless there has been full disclosure that the institution’s program does not meet the prerequisites of the state where the student is located.
The new Federal regulation requires an acknowledgement from the student regarding an individual disclosure, such as the program not meeting the licensure board prerequisites. Not only would the acknowledgement be required by Federal regulation, it is a good practice to show acquiescence by the student with full knowledge of the limitations of the program. The ability for a student to claim a breach of contract is mitigated by the disclosure.
Institution’s moral obligation for the student
As we previously discussed, the institution’s goal should be to serve the students to the best of their ability to reach academic success. If a student is choosing the institution to prepare them to pursue a particular professional field, the institution must accept the moral obligation to provide the necessary information regarding the prerequisites to pursue that professional field.
Consider the inexperienced student vs. the academic department offering the program. Who do you think has better access to understand how to research and determine the prerequisites in another state? We have often heard that it should be the student’s responsibility to determine licensure applicability. But how is a student who has not taken the first course in their chosen profession supposed to know how a curriculum (which they did not design nor do they understand) matches their state’s academic requirements?
Consider also, the institution chose to offer the program in another state. Shouldn’t the institution have the responsibility to determine if the program the institution chose to offer in that state meets the prerequisites in the state? The institution is not obligated to admit or enroll that student.
Institutions have shared that this process of researching and coordinating with state licensure boards is difficult. That may be true.
There has been some progress at some institutions to coordinate this research work. At least one, if not more, institutional members of the WCET State Authorization Network (SAN) have coordinated with the academic departments to research their department’s own programs and prerequisites in the states where the programs are offered. The academic departments are then sharing the research with the institution’s compliance staff member as the central point for obtaining and managing the information to make the required disclosures. Additionally, there are many discussions among higher education associations such as WCET, SAN, and NC-SARA about reaching out to licensure boards to help them understand that the institutions are seeking this information and to make efforts to make the information accessible.
It is also true that the released Federal regulations regarding notifications and disclosures need some clarification or might not go into effect at all There have been many requests for clarification from WCET, SAN, and NC-SARA. If the new state authorization regulation is delayed or rescinded, your institution will still be subject to SARA (if you are a member), state, legal, and moral obligations.
Rest assured that these organizations will continue to seek clarification on regulatory obligations. There will also be further assistance to institutions with coordinated contacts and practice acts to simplify the research efforts as much as possible to meet the institutional obligations to supply students with the necessary information to achieve their goals.
Director, State Authorization Network (SAN)
WCET – WICHE Cooperative for Educational Technologies