November 30, 2018
U. S. Department of Education (ED) regulations affecting state authorization of distance education, issued in December, 2016, that were to take effect on July 1, 2018, addressed with considerable complexity the obligations of institutions to make certain notifications to students enrolling in programs intended to lead to professional licensure. While those rules have now been delayed until 2020 (ED has scheduled additional negotiated rulemaking), the underlying issue of appropriately informing students whether their successful completion of the program in which they are enrolling will enable or qualify them to take professional licensing exams necessary to practice their chosen professional discipline in the location they intend remains.
This issue has grown in importance with the expansion of interstate distance education. It is now common for a student living in one state to enroll in a nursing program (for example), offered by an institution from another state, with the intention of becoming a licensed nurse in the state in which the student is located while enrolled in the program – or even a third state. If the program offered by the institution does not satisfy the requirements of the board of nursing in the state in which the student intends to work as a nurse, the student’s goals are thwarted and the institution in whose program the student enrolls is at potential legal and financial risk.
Review of the work of two prior negotiated rulemaking panels charged with addressing such notifications (2010 and 2014) strongly suggests that that the issue will continue to concern negotiators, ED staff and others, and it is likely to be a part of whatever rules are eventually issued by ED. Current rules and requirements of various entities also deal with the issue.
Providing appropriate notifications to students is a concern those of us working in postsecondary distance education should all share, for at least three reasons.
First, it should be a moral obligation for every responsible institution: simply put, it’s the right thing to do. Before beginning study, students should know whether their successful completion of a particular academic program will meet the education requirements necessary for them to pursue licensure in the state in which they intend to practice. If it won’t, they can make other choices.
Second, while the highly specific language of now-delayed ED rules is not now in place, other, more general expectations about misrepresentation, transparency and notification obligations of ED, accreditors, states and NC-SARA remain in effect1. [For federal requirements, see especially 34 CFR 668.71 and 668.72(c) ; 34 CFR 668.43(b) and 34 CFR 602.17(g)(2).]
And lastly, failure to satisfactorily address these issues leaves institutions at significant legal and financial risk.
Institutions will have various views and take varied actions on this issue. But in regard to SARA requirements, SARA institutions are required to abide by the provisions of the SARA Manual, Section 5.2, which describe notification requirements regarding professional licensure, and they are required to meet the commitments they make in their application to participate in SARA.
5.2 Programs leading to Professional Licensure
SARA has no effect on state professional licensing requirements. Any institution operating under SARA that offers courses or programs potentially leading to professional licensure must keep all students, applicants and potential students who have contacted the institution about the course or program informed as to whether such offerings actually meet state licensing requirements. For purposes of SARA, this must be done in one of two ways:
a. The institution may determine whether the course or program meets the requirements for professional licensure in the state where the applicant or student resides and provide that information in writing to the student, or
b. After making all reasonable efforts to make such a determination, if unsuccessful, the institution may notify the applicant or student in writing that the institution cannot confirm whether the course or program meets requirements for professional licensure in the student’s state, provide the student with current contact information for any applicable licensing boards, and advise the student to determine whether the program meets requirements for licensure in the state where the student lives.
Item 10 of the SARA Institution Application provides additional information/clarity for SARA participating institutions.
10. Agree to notify in writing all students in a course or program that customarily leads to professional licensure, or which a student could reasonably believe leads to such licensure, whether or not the course or program meets requirements for licensure in the state where the student resides. If an institution cannot determine through its contact with relevant licensing entities whether the course or program meets licensure requirements in the student’s state of residence, the institution may meet this SARA requirement by informing the student in writing and providing the student the contact information for the appropriate state licensing board(s). An e-mail dedicated solely to this purpose and sent to the student’s best known e-mail address meets this requirement. The institution should use other means to notify the student if needed.
Current ED requirements about misinformation make no distinction about student location, so institutions that participate in federal Title IV student assistance programs are required to provide relevant disclosures and notifications to all students. For discussion, and to focus on the provision of notifications about professional licensure issues, students could be placed in three groups: 1) students who study on-campus, do their experiential learning requirements (clinical rotations, student teaching, etc.) in the state in which the institution is located, and plan to become licensed and practice their chosen profession in that state; 2) students who meet some but not all of those characteristics; and 3) students who meet none of those characteristics.
SARA requirements do not apply to students in the first category, though federal and other requirements certainly do. But SARA requirements are relevant to students in the other two categories, because SARA covers “distance education” rather than purely “online education.”
In particular, “distance education” activities covered by NC-SARA include out-of-state experiential learning placements (for example, clinical rotations, etc.) for students who are taking face-to-face courses on their home campuses.
SARA Manual, Section 5.1(a): “SARA applies solely to distance education activity conducted across state lines. It does not apply to distance education activity inside a state or to on‐ground campuses. For purposes of SARA, “distance education” includes limited activities conducted for short periods on the ground. Those activities include out-of-state learning placements, and students carrying out such activities are to be provided notifications as to whether the program they are enrolled in meets licensure requirements in the state(s) in which they are doing their learning placements.
Almost all such field placements (with certain limitations, see Subsection 5.2) will fall under SARA, but many may also fall under the jurisdiction of state professional licensing boards.
Additional Thoughts on Professional Licensure Notifications
It is clear that institutional representatives are concerned about providing notifications, and SARA staff around the country receive frequent questions on the topic. While some questions focus on the current status of federal requirements, and some focus on SARA requirements, most questioners are trying to determine whether their institution’s practices in this area are sufficient and meet various requirements.
To be clear, SARA staff cannot provide legal advice on whether an institution’s practices regarding professional licensure notifications meet federal, state or accreditation standards. We can, however, provide guidance on SARA requirements. The following material is based on extended conversations, spanning several years, with institutional representatives, state regulators and others who are well-informed on the topic.
Thinking about the problem: a range of options
The following diagram presents a spectrum of possible policy and/or regulatory responses to the problem.
At one extreme, a “let the buyer beware” approach to the notifications issue would make the student fully responsible for determining whether an institution’s program would fit his/her needs and goals. That approach would be easiest for the institution, but students simply do not understand the complexities that are involved. Such an approach would fail the moral imperative, not meet existing requirements of multiple entities, and leave institutions vulnerable to legal and financial risk.
At the other extreme, an “in loco parentis” (in the place of a parent) approach could call for extraordinary general and individual outreach to students, customized for each student, each discipline, and each state, about every possible effect of frequently changing regulations around the country within potentially hundreds of disciplines. While such an approach could satisfy the moral argument, and could likely satisfy existing expectations, it could never be completely comprehensive, would be extraordinarily onerous for institutions to implement and maintain, and is likely overkill for the majority of situations. And by its very nature of attempting to be completely comprehensive, omissions or mistakes could possibly increase, rather than decrease, institutional legal and financial risk.
Between the extremes – looking for Goldilocks’ bed
There are, of course, numerous approaches that lie between these two extremes, approaches based on an understanding of the issues, the challenges of informing students, how professional licensure in various fields is governed in the states, and how higher education institutions are organized and operate. The following paragraphs outline what NC-SARA staff believe to be a reasonable, workable, and “students’ needs first” response to the problem. It shares responsibilities between the institution and the student, as we believe appropriate. It likely goes beyond the current practice of many institutions.
This approach is certainly not the only one that could meet those characteristics, and this particular approach is not a SARA requirement, though it would satisfy existing SARA requirements for notifications. It is offered as a “best practice” approach to the issue. NC-SARA cannot provide legal advice on whether it would satisfy other existing notification requirements (accreditation, misrepresentation, etc.), or any eventual ED regulations on the topic.
General “best practice”/recommendations/suggestions
Establish contact with existing and prospective students enrolled in or seeking information about institutional academic programs generally understood as intended to lead to professional licensure.
Direct those students to institutional or other web resources dedicated to the issue of entering the licensed professions. A large institution with many programs having that focus could organize those resources by college or department; a smaller institution, with fewer such programs, could have a single location for that information.
The institution decides in which states it will offer its programs leading to licensure, only accepts students from those states, and could decline to enroll students located (or intending to pursue licensure) in other states. Alternatively, the institution makes that decision in response to queries from students in various states.
The institution maintains accurate information within the licensure resource about whether its programs leading to licensure will enable a student to satisfy the educational requirements of the various states from which it will accept students. If, after assertive attempts, a particular licensing board in a particular state will not let the institution know that completers of the institution’s program satisfy the state’s educational requirements of licensure, the institution may state that fact within its licensure resource information and provide contact information for the particular licensing board to students interested in using the institution’s program to satisfy licensing requirements in that state.
If, in isolated cases, the institution decides to allow students located in states for which it knows the institution’s program(s) will not meet educational requirements for licensure, or states in which it cannot determine whether that is the case, the institution obtains an explicit, written statement from the student indicating that the student understands that to be the case.
Within its licensure-related web resources, the institution provides e-mail and phone contact information for knowledgeable individuals at the institution who can answer detailed or unusual questions that students may have regarding these issues.
Prior to enrolling a student in a program intended to enable professional licensure, the institution obtains written confirmation from the student that she/he has been provided, through the institution’s web and other resources, relevant information about whether the program satisfies education requirements necessary for licensure in his/her intended field of study in the intended state.
Carefully read the licensure-related information provided by the institution.
If questions remain after reviewing the information provided by the institution, contact an institutional representative knowledgeable about licensure issues in your chosen field.
Understand and consider the implications of the licensure-related material prior to enrolling in a program intended to lead to professional licensure.
Acknowledge in writing that you have been provided and have reviewed the information.
If your plans change (as to location, program, etc.), notify your institution and go through this process again in regard to your new plans.
The above approach would rely on institutional staff doing what they do best: drawing on their specialized knowledge to research, assemble, organize and present relevant information; assessing consequences of various courses of action; maintaining currency; and giving informed advice in unusual or confusing situations. It calls on students to assume responsibility for informing themselves on these important issues prior to beginning a significant investment of time, effort and money.
Marshall A. Hill
President and Chief Executive Officer