Two new Gainful Employment regulations that implement greater requirements for distant education courses and limit overall program length will take effect on July 1, 2024 for schools across the country.
After raising concerns about these provisions, financial aid offices can now appeal federal enforcement on the grounds that they face “unique and time-specific” complications that are beyond their control. The Department of Education still retains discretion as to when it will enforce regulatory compliance and strongly encourages schools to report any issues that meet this criteria prior to the policies’ effective date this summer.
POSTED DATE: April 09, 2024
AUTHOR: Federal Student Aid
ELECTRONIC ANNOUNCEMENT ID: GE-24-03
SUBJECT: Updates on New Regulatory Provisions Related to Certification Procedures and Ability-to-Benefit
Today, Federal Student Aid announces clarifications on how its enforcement discretion specifically relates to two provisions in the Certification Procedures regulations published on October 31, 2023, and scheduled to take effect on July 1, 2024. These provisions are related to the maximum program length for certain Gainful Employment (GE) programs and the need for postsecondary programs to obtain necessary state licensure or certification approvals. We also provide an update on timing for compliance with one provision related to ability-to-benefit.
Clarifying Enforcement Discretion for New Certification Procedures Requirements
The Department issued final regulations related to certification procedures for institutions participating in the Title IV, HEA programs to provide important protections for students to ensure that their programs do not result in unnecessary debt and can meet their educational goals (88 FR 74568). At the same time, the Department recognizes that, currently, some institutions face unique challenges outside of their control that may affect their ability to comply with the following provisions of the regulations by the date they become effective:
34 CFR 668.14(b)(26): New limits on program length for GE programs, reducing the maximum program length from 150% to 100% of the state’s minimum educational requirements for licensure; and
34 CFR 668.14(b)(32): New requirements for programs to meet educational requirements for licensure or certification in all states where the institution has enrolled students through distance education and correspondence courses.
For example, institutions have expressed concern about their ability to seek and obtain approval from accrediting agencies and States to change the lengths of their GE programs in time to come into compliance with the regulations. Institutions have also expressed concern about their ability to determine the specific requirements for licensure in the States in which they operate and, in some cases, limit the States in which they operate in order to comply with requirements for programs to meet licensure and certification requirements in all States where an institution enrolls students. The Department has also heard concerns from State agencies about their ability to approve a substantial number of program changes in time for their institutions to be in compliance. Additionally, we are aware of challenges that institutions have experienced regarding access to and use of certain Department systems.
The Department understands that there may be circumstances outside of an institution’s control that prevent compliance with these new requirements by July 1, 2024. However, the Department believes that most of those concerns and challenges will have been resolved or sufficiently mitigated by January 1, 2025. The Department has enforcement discretion with respect to an institution’s compliance with certain Title IV, HEA requirements. Given the concerns received from institutions and States, particularly for the period between July 1, 2024 and January 1, 2025, we will consider exercising this discretion before taking action regarding the provisions in 34 CFR 668.14(b)(26) and 34 CFR 668.14(b)(32).
An institution can raise as a defense to an enforcement action that it faced challenges in meeting compliance due to reasons that are unique, time-specific, and outside the control of the institution. Some examples may include:
- The inability to obtain approvals from States and/or accrediting agencies for changes in program length in order to comply with requirements under 34 CFR 668.14(b)(26);
- The inability to obtain approvals for academic program changes to comply with the requirements related to licensure/certification under 34 CFR 668.14(b)(32);
- The inability to obtain sufficient clarity from State licensing and certification entities about licensure and certification requirements;
- The inability to access and use the Department’s systems.
The Department will seriously consider such challenges, in particular prior to January 1, 2025, when determining whether to seek enforcement of these provisions. The Department retains the discretion to base its determination on the totality of the circumstances and the specific facts of each case.
In accordance with the Department’s general practice, the Department encourages institutions to document, prior to July 1, 2024, the circumstances that prevent their compliance with any requirement by the regulations’ effective date. The Department will review such documentation prior to taking any enforcement action related to these provisions.
Eligible Career Pathway Program Approvals Will Begin in 2025
The Department also maintains requirements for institutions with existing eligible career pathway programs to have at least one program approved by the Department in order to offer Federal student aid to students without a high school diploma or its recognized equivalent under 34 CFR 668.157(b). The Department plans to begin approving existing eligible career pathway programs as part of eligibility applications beginning on January 1, 2025.
Future Guidance on New Regulations
In the coming weeks, the Department intends to publish a series of resources related to the regulations. Those include:
- A Dear Colleague Letter summarizing the provisions in the regulations published October 31, 2023;
- A series of frequently asked questions about those provisions;
- A Dear Colleague Letter explaining the implementation of the program length limitation under 34 CFR 668.14(b)(26); and
- A Dear Colleague Letter explaining the implementation of ability to benefit State process regulations under 34 CFR 668.156 and requirements for eligible career pathway programs under 34 CFR 668.157.
We thank you for your continued efforts to implement these new requirements.