Institutions offering courses and/or programs out-of-state that lead to professional licensure or certification have an additional responsibility. Institutions must determine whether the courses and/or programs meet the prerequisites for licensure or certification in the states where they are being offered and provide notification of these findings. There are a variety of reasons for this additional responsibility. Institutions must be aware of SARA requirements (for SARA participating institutions), both state and federal regulatory obligations, and concern for institutional liability exposure. An institution may also want to consider the moral obligation to the student. The required prerequisite determinations and notifications do vary between the regulatory obligations and the SARA requirements. A review of Professional Licensure Notification and Disclosures for Out-of-State Courses and Programs and the listed Talking Points may be helpful.
You will want to review and share this three part series:
Institutions that participate in SARA must be aware and comply with notification requirements directed by SARA. The SARA Manual states, in section 5.2, that SARA has no effect on professional licensure requirements. However, any SARA participating institution that offers COURSES or PROGRAMS leading to professional licensure is required to notify all students, applicants, and potential students, who have contacted the institution about a course or program, whether the course or program meets state licensing requirements. This notification must be in writing to the student.
There are three different regulatory considerations for institutions about notifications regarding licensure and certification prerequisites: Federal Misrepresentation Regulations, New Federal Regulations effective July 1, 2018 (delayed until 2020), and State regulations.
Federal Misrepresentation Regulations
An institution must be aware of their communications, or omissions, to students per misrepresentation regulations.
The Federal Misrepresentation regulations state that an institution participating in Title IV HEA programs, must not engage in substantial misrepresentation.
Misrepresentation is defined in 34 CFR 668.71 (definition revised in 2016) to include any false, erroneous, or misleading statement or omission 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. The 2016 definition, which is currently effective, includes passive omissions leading to misrepresentation in addition to active statements.
The Federal regulations go on to state in 34 CFR 668.72 that there must be no misrepresentation as to the nature of the program. This part of the regulation specifically states in 34 CFR 668.72(c)(2) that there is to be no misrepresentation as to whether the successful completion of a course of instruction qualifies a student -
"To receive, to apply to take or to take the examination required to receive, a local, State, or Federal license, or a nongovernmental certification required as a precondition for employment, or to perform certain functions in the States in which the educational program is offered, or to meet additional conditions that the institution knows or reasonably should know are generally needed to secure employment in a recognized occupation for which the program is represented to prepare students;"
New Federal Regulations Effective July 1, 2018 - Disclosures 34 CFR 668.50
April 26, 2019 - The U.S. District Court Judge orders 30 day vacatur of the delay of the December 2016 Federal Regulations for State Authorization.
While there are many unanswered questions regarding compliance management for these regulations, SAN and WCET are advising institutions to proceed to the best of their ability and that we will share guidance as it becomes available. You may wish to review this article:
One major issue to point out about professional licensure notification is the regulation's use of the word "reside" or "state of residence". We have talked about location of activity, which is needed for state compliance and is the foundation of these regulations, yet the regulations indicate residence.
PUBLIC DISCLOSURES are required for enrolled and prospective students regarding educational PROGRAMS that can be completed solely through distance education or correspondence courses.
Part (7) addresses requiring the institution to:
- Disclose the prerequisites for professional licensure or certification for the occupation that the program prepares students to enter in each state in which the student resides and any other state the institution has made a determination about prerequisites.
- Disclose the determination whether the program satisfies the state requirements.
- If the institution does not meet the prerequisites, then a disclosure to that effect.
Section (c) INDIVIDUAL DISCLOSURES for the prospective students related to professional licensure disclosures:
- To prospective students: any determination that the program does not meet state prerequisites for professional licensure or certification in the state the student resides.
- To enrolled and prospective students: any change that the program no longer meets prerequisites within 14 days of that determination.
- For a prospective student who receives a disclosure about a program not meeting prerequisites and subsequently enrolls in the program, the institution must receive an ACKNOWLEDGMENT from that student that the disclosure was received and demonstrated receipt of the student’s acknowledgment.
Institutions should determine if there are separate notifications required by the state regulations to offer professional licensure programs in the state. These could include state misrepresentation regulations and other consumer protection related regulations.