Rule2023-00556
Modifications of Approval Requirements for Courses Designed To Prepare Individuals for Licensure or Certifications
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
January 18, 2023
Effective
February 17, 2023
Issuing agencies
Veterans Affairs Department
Abstract
The Department of Veterans Affairs (VA) is amending its regulations to implement the provisions of the Jeff Miller and Richard Blumenthal Veterans Health Care and Benefits Improvement Act of 2016. This final rule adopts without change a proposed rule, which adds new approval requirements as specified in the statutory provisions for accredited and nonaccredited programs designed to prepare an individual for licensure and certification in a State, implements VA's new authority to waive the added approval requirements under certain circumstances and adjust the authority of a State approving agency to add new approval criteria, and adds a circumstance for disapproval of a program designed to prepare an individual for licensure and certification, as prescribed by the law we are implementing.
Full Text
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<title>Federal Register, Volume 88 Issue 11 (Wednesday, January 18, 2023)</title>
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[Federal Register Volume 88, Number 11 (Wednesday, January 18, 2023)]
[Rules and Regulations]
[Pages 2831-2834]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-00556]
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DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 21
RIN 2900-AQ91
Modifications of Approval Requirements for Courses Designed To
Prepare Individuals for Licensure or Certifications
AGENCY: Department of Veterans Affairs.
ACTION: Final rule.
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SUMMARY: The Department of Veterans Affairs (VA) is amending its
regulations to implement the provisions of the Jeff Miller and Richard
Blumenthal Veterans Health Care and Benefits Improvement Act of 2016.
This final rule adopts without change a proposed rule, which adds new
approval requirements as specified in the statutory provisions for
accredited and nonaccredited programs designed to prepare an individual
for licensure and certification in a State, implements VA's new
authority to waive the added approval requirements under certain
circumstances and adjust the authority of a State approving agency to
add new approval criteria, and adds a circumstance for disapproval of a
program designed to prepare an individual for licensure and
certification, as prescribed by the law we are implementing.
DATES: This rule is effective on February 17, 2023.
FOR FURTHER INFORMATION CONTACT: Cheryl Amitay, Chief, Policy and
Regulation Development Staff, (225C), Education Service, Department of
Veterans Affairs, 810 Vermont Avenue NW, Washington, DC 20420, (202)
461-9800. (This is not a toll-free telephone number.)
SUPPLEMENTARY INFORMATION: On January 10, 2022, VA published a proposed
rule in the Federal Register, 87 FR 1087, to amend its regulations to
add new approval requirements for accredited and nonaccredited programs
designed to prepare an individual for licensure and certification in a
State and to allow VA to waive the added approval requirements under
certain circumstances. VA provided a 60-day comment period, which ended
on March 10, 2022. We received two comments on the proposed amendments.
Both comments supported the rulemaking, but requested clarifying
information, which we provide below.
One comment requested that VA clarify the ``undefined terms in 38
U.S.C. 3676 (approval of nonaccredited courses),'' listing as
undefined: ``Quality,'' ``Qualifications,'' ``Financially Sound,''
``Substantial Misrepresentation,'' ``Good Reputation and Character,''
``Licensure and Certification,'' ``Such Additional Criteria. . . ,''
and ``Administrative Support.'' The commenter stated that the standards
to protect student veterans and GI Bill funds in 38 U.S.C. 3676 have
been undefined and rarely enforced resulting in the abuse of veteran
benefits and taxpayer funds.
VA shares the concern for the protection of student veterans and
their VA education benefits and wants to provide assurances that the
standards in sec. 3676 are clearly defined and upheld. The regulatory
amendments
[[Page 2832]]
implementing the provisions of the Jeff Miller and Richard Blumenthal
Veterans Healthcare and Benefits Improvement Act of 2016 will provide
safeguards against abuse of veterans and their VA educational benefits
with regard to programs that are designed to prepare an individual for
licensure or certification. The new approval requirements will ensure
that courses designed to prepare an individual for licensure or
certification meet all instructional curriculum licensure and
certification requirements, and courses designed to prepare an
individual for employment meet the standards developed by a board or
agency. Likewise, for courses designed to prepare an individual for
licensure to practice law, the new approval requirements will ensure
that the courses are accredited by a specialized accrediting agency for
programs of legal education, or an association recognized by the
Department of Education. We believe our implementation in this
rulemaking of the legal standards will ensure the protection of student
Veterans and GI Bill funds, and further clarification is not necessary.
Thus, we will not make any changes based on this comment.
Also, the State Approving Agency's (SAA) authority in new 38 CFR
21.4253(d) and 21.4254(c)(15) to impose additional approval criteria
and the requirement in these provisions that SAAs consult with VA
before imposing the new criteria to ensure that the criteria are
necessary and equitable with regard to public, private, and proprietary
educational institutions will provide protection against abuse of
veterans benefits and taxpayer funds. In addition, the requirement in
new 38 CFR 21.4259(e) to publicly disclose the conditions or
requirements for obtaining the license, certification, or approval or
face disapproval will protect veterans from being deceived about the
skills they need for licensure or certification. Therefore, we do not
think it is necessary to further define terms in sec. 3676 and will not
make any additional changes based on these comments.
A second comment requested that VA collaborate with the Department
of Education to determine common language and direction, where
possible, when addressing institution responsibilities to manage
student aid for postsecondary programs leading to a license or
certification. VA is happy to consider the request to collaborate with
the Department of Education when necessary to address an institution's
responsibilities concerning managing student aid for programs that lead
to licensure or certification to make any processes less confusing for
students; however, we will not make any changes to the rule based on
this comment as it is beyond the scope of this rulemaking.
This comment also requested clarification on implementation of
proposed 38 CFR 21.4253(d)(9)(i) with regard to how VA will advise the
SAA and the institution seeking State program approval to address
interstate programs provided by distance education that lead to a
license or certification. For SAA approval, Sec. 21.4253(d)(9)(i)
requires that a course designed to prepare an individual for licensure
or certification in a State meet all instructional curriculum licensure
or certification requirements of such State. Such courses are required
to meet the same instructional curriculum licensure or certification
requirements established by their State whether the program is
conducted via distance learning or in person. The comment referenced
confusion with regard to jurisdiction for obtaining SAA approval of
``interstate distance education.'' Section 21.4253(d)(9)(i) does not
address SAA jurisdiction for purposes of approval of licensure or
certifications courses, and therefore, we will not address the
jurisdictional issue in this rulemaking. However, the general
provisions in 38 CFR 21.4250, governing licensing and certification
test approval and jurisdiction, remain applicable.
Additionally, this comment requested clarification concerning the
specific additional requirements that must be part of the notifications
that are intended by the requirement in proposed 38 CFR 21.4259(e)
directing an SAA to disapprove a course leading to a license or
certification when an institution fails to publicly disclose ``any
conditions or additional requirements, including training, experience,
or examinations, required to obtain the license, certification, or
approval for which the course of education is designed to provide
preparation.'' The additional requirements that must be part of the
notifications refer to any requirements set by a state licensing or
certifying agency, such as training required for licensure,
certification, or approval, any prior experience that is a prerequisite
for obtaining the license, certification, or approval, or any
examinations that must be taken before a student can obtain a license,
certification, or approval. Because each state licensing or certifying
agency establishes their own distinct requirements, we are unable to be
more specific about the requirements in this rulemaking. If there are
any requirements beyond training, prior experience, or examinations
that a student must meet to obtain a particular license, certification,
or approval, an institution or training facility must disclose those
requirements. Thus, we will not make any changes based on this comment.
For the reasons stated above, VA will adopt the proposed rule as
final, without change.
Executive Orders 12866 and 13563
Executive Orders 12866 and 13563 direct agencies to assess the
costs and benefits of available regulatory alternatives and, when
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, and other advantages; distributive impacts;
and equity). Executive Order 13563 (Improving Regulation and Regulatory
Review) emphasizes the importance of quantifying both costs and
benefits, reducing costs, harmonizing rules, and promoting flexibility.
The Office of Information and Regulatory Affairs has determined that
this rule is not a significant regulatory action under Executive Order
12866. The Regulatory Impact Analysis associated with this rulemaking
can be found as a supporting document at <a href="http://www.regulations.gov">www.regulations.gov</a>.
Regulatory Flexibility Act
The Secretary hereby certifies that this final rule will not have a
significant economic impact on a substantial number of small entities
as they are defined in the Regulatory Flexibility Act (5 U.S.C. 601-
612). VA has determined that, although there may be a number of
educational training facilities and SAAs considered small entities
which may be affected by this rule, they will not be significantly
impacted by this rule.
Allowing waiver of the added approval requirements under certain
circumstances, as well as requiring SAAs to present a written proposal
to VA justifying the need for adding additional approval criteria for
approving either accredited or nonaccredited programs, will likely have
some impact on both educational training institutions and SAAs.
However, the impact will be minimal. VA estimates that five educational
facilities will request a waiver per year and that the estimated cost
for any educational institution seeking a waiver will be less than
$300. Also, VA estimates that approximately eleven requests per year
from SAAs will be received to add additional approval criteria and the
estimated cost for SAAs making these requests will also be less
[[Page 2833]]
than $300. Accordingly, the number of schools and SAAs affected will
not be substantial and the impact on each will not be significant.
Therefore, under 5 U.S.C. 605(b), the initial and final regulatory
flexibility analysis requirements of 5 U.S.C. 603 and 604 do not apply.
The provisions requiring institutions to meet certain criteria to
maintain eligibility for receipt of VA educational benefits could also
entail costs to these institutions, such as the cost of making program
changes to meet the new requirements or the loss of funding derived
from VA benefit payments because of an inability to meet the new
requirements or obtain a waiver. However, such provisions merely
restate existing provisions of statute and thus will have no additional
impact on such small entities. Therefore, under 5 U.S.C. 605(b), these
provisions are exempt from the initial and final regulatory flexibility
analysis requirements of 5 U.S.C. 603 and 604.
Unfunded Mandates
The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C.
1532, that agencies prepare an assessment of anticipated costs and
benefits before issuing any rule that may result in the expenditure by
State, local, and tribal governments, in the aggregate, or by the
private sector, of $100 million or more (adjusted annually for
inflation) in any one year. This final rule will have no such effect on
State, local, and tribal governments, or on the private sector.
Paperwork Reduction Act
This final rule includes provisions constituting two new
collections of information under the Paperwork Reduction Act of 1995
(44 U.S.C. 3501-3521) that require approval by the Office of Management
and Budget (OMB). Accordingly, under 44 U.S.C. 3507(d), VA has
submitted a copy of this rulemaking action to OMB for review and
approval. OMB has reviewed and approved these new collections of
information and assigned OMB Control Numbers 2900-0907, 2900-0908.
Congressional Review Act
Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.),
the Office of Information and Regulatory Affairs designated this rule
as not a major rule, as defined by 5 U.S.C. 804(2).
List of Subjects in 38 CFR Part 21
Administrative practice and procedure, Armed forces, Claims,
Colleges and universities, Education, Employment, Schools, Veteran
readiness, Veterans, Vocational education.
Signing Authority:
Denis McDonough, Secretary of Veterans Affairs, approved this
document on December 30, 2022, and authorized the undersigned to sign
and submit the document to the Office of the Federal Register for
publication electronically as an official document of the Department of
Veterans Affairs.
Jeffrey M. Martin,
Assistant Director, Office of Regulation Policy & Management, Office of
General Counsel, Department of Veterans Affairs.
For the reasons stated in the preamble, the Department of Veterans
Affairs amends 38 CFR part 21 as set forth below:
PART 21--VETERAN READINESS AND EMPLOYMENT AND EDUCATION
Subpart D--Administration of Educational Assistance Programs
0
1. The authority citation for part 21, subpart D, continues to read as
follows:
Authority: 10 U.S.C. 2141 note, ch. 1606; 38 U.S.C. 501(a),
chs. 30, 32, 33, 34, 35, 36, and as noted in specific sections.
0
2. Amend Sec. 21.4253 by revising the last sentence of the
introductory text of paragraph (d) and adding paragraphs (d)(9) and
(10) to read as follows:
Sec. 21.4253 Accredited courses.
* * * * *
(d) * * *The State approving agency may approve the application of
the school when the school and its accredited courses are found to have
met the following criteria and additional reasonable criteria
established by the State approving agency if the Secretary or designee,
in consultation with the State approving agency, approves the
additional criteria as necessary and equitable in its treatment of
public, private, and proprietary for-profit educational institutions:
* * * * *
(9)(i) For a course designed to prepare an individual for licensure
or certification in a State, the course meets all instructional
curriculum licensure or certification requirements of such State.
(ii) For a course designed to prepare an individual for licensure
to practice law in a State, the course is accredited by a specialized
accrediting agency for programs of legal education or association
recognized by the Secretary of Education under subpart 2 of part H of
title IV of the Higher Education Act of 1965 (20 U.S.C. 1099b), from
which recipients of law degrees from such accredited programs are
eligible to sit for a bar examination in any State.
(iii) For a course designed to prepare an individual for employment
pursuant to standards developed by a board or agency of a State in an
occupation that requires approval, licensure, or certification, the
course meets such standards.
(iv) An educational institution may apply, through their State
approving agency of jurisdiction, to the Secretary or designee for a
waiver of the requirements of this paragraph (d)(9). The State
approving agency will forward an application for waiver, together with
its recommendation for granting or denying the application, to the
Secretary or designee. The Secretary or designee may grant a waiver
upon a finding that all of the following criteria have been met:
(A) The educational institution is not accredited by an agency or
association recognized by the Department of Education.
(B) The course did not meet the requirements of this paragraph
(d)(9) at any time during the 2-year period preceding the date of the
waiver.
(C) The waiver furthers the purposes of the educational assistance
programs administered by VA or would further the education interests of
individuals eligible for assistance under such programs.
(D) The educational institution does not provide any commission,
bonus, or other incentive payment based directly or indirectly on
success in securing enrollments or financial aid to any persons or
entities engaged in any student recruiting or admission activities or
in making decisions regarding the award of student financial
assistance, except for the recruitment of foreign students residing in
foreign countries who are not eligible to receive Federal student
assistance.
(10) Before requiring a school and its accredited courses to meet
any additional criteria, the State approving agency must present a
written proposal to the Secretary or designee justifying the need for
the additional criteria and containing an attestation that the criteria
will treat all schools equitably, regardless of whether they are
public, private, or for-profit institutions. The Secretary or designee
will determine whether the additional criteria are necessary and treat
schools equitably based on the proposal and any additional information
submitted. The Secretary or designee may change the determination at
any time if, after implementation, it becomes apparent that the
criteria are unnecessary or
[[Page 2834]]
schools are treated inequitably under the criteria.
(i) The written proposal must contain a description of the need for
the additional criteria and an explanation of how the imposition of the
additional criteria would remedy the problem. The proposal must also
contain a statement concerning whether State or Federal laws,
regulations, or policies require the imposition of the additional
criteria and an explanation of the consideration of any alternative
means to achieve the same goal as the additional criteria.
(ii) The Secretary or designee may request such additional
information from the State approving agency as the Secretary or
designee deems appropriate before determining whether the criteria are
necessary and treat schools equitably.
(Authority: 38 U.S.C. 3675(b)(3), 3676(c), (f))
* * * * *
0
3. Amend Sec. 21.4254 by revising paragraph (c)(14) and adding
paragraph (c)(15) to read as follows:
Sec. 21.4254 Nonaccredited courses.
* * * * *
(c) * * *
(14)(i) For a course designed to prepare an individual for
licensure or certification in a State, the course meets all
instructional curriculum licensure or certification requirements of
such State.
(ii) For a course designed to prepare an individual for licensure
to practice law in a State, the course is accredited by a specialized
accrediting agency for programs of legal education or association
recognized by the Secretary of Education under subpart 2 of part H of
title IV of the Higher Education Act of 1965 (20 U.S.C. 1099b), from
which recipients of law degrees from such accredited programs are
eligible to sit for a bar examination in any State.
(iii) For a course designed to prepare an individual for employment
pursuant to standards developed by a board or agency of a State in an
occupation that requires approval, licensure, or certification, the
course meets such standards.
(iv) An educational institution may apply, through their State
approving agency of jurisdiction, to the Secretary or designee for a
waiver of the requirements of this paragraph (c)(14). The State
approving agency will forward an application for waiver, together with
its recommendation for granting or denying the application, to the
Secretary or designee. The Secretary or designee may grant a waiver
upon a finding that all of the following criteria have been met:
(A) The educational institution is not accredited by an agency or
association recognized by the Department of Education.
(B) The course did not meet the requirements of this paragraph
(c)(14) at any time during the 2-year period preceding the date of the
waiver.
(C) The waiver furthers the purposes of the educational assistance
programs administered by VA or would further the education interests of
individuals eligible for assistance under such programs.
(D) The educational institution does not provide any commission,
bonus, or other incentive payment based directly or indirectly on
success in securing enrollments or financial aid to any persons or
entities engaged in any student recruiting or admission activities or
in making decisions regarding the award of student financial
assistance, except for the recruitment of foreign students residing in
foreign countries who are not eligible to receive Federal student
assistance.
(15) Such additional reasonable criteria as may be deemed necessary
by the State approving agency if the Secretary or designee, in
consultation with the State approving agency, approves the additional
criteria as necessary and equitable in its treatment of public,
private, and proprietary for-profit educational institutions. The
Secretary or designee will determine whether the additional criteria
are necessary and treat schools equitably based on a proposal and any
additional information submitted.
(i) Before requiring a school and its nonaccredited courses to meet
any additional criteria, the State approving agency must present a
written proposal to the Secretary or designee justifying the need for
the additional criteria and containing an attestation that the criteria
will treat all schools equitably, regardless of whether they are
public, private or for-profit institutions. The written proposal must
contain a description of the need for the additional criteria and an
explanation of how the imposition of the additional criteria would
remedy the problem. The proposal must also contain a statement
concerning whether State or Federal laws, regulations, or policies
require the imposition of the additional criteria and an explanation of
the consideration of any alternative means to achieve the same goal as
the additional criteria.
(ii) The Secretary or designee may request such additional
information from the State approving agency as the Secretary or
designee deems appropriate before determining whether the criteria are
necessary and treat schools equitably.
(iii) The Secretary or designee may change the determination at any
time if, after implementation, it becomes apparent that the criteria
are unnecessary or schools are treated inequitably under the criteria.
(Authority: 38 U.S.C. 3676(c), (f))
* * * * *
0
4. Amend Sec. 21.4259 by adding paragraph (e) to read as follows:
Sec. 21.4259 Suspension or disapproval.
* * * * *
(e) The Secretary or the appropriate State approving agency will
disapprove a licensing and certification program of education if the
educational institution providing the program of education fails to
publicly disclose in a prominent manner any conditions or additional
requirements, including training, experience, or examinations required
to obtain the license, certification, or approval for which the program
of education is designed to provide preparation.
(1) The Secretary will determine whether a disclosure is
sufficiently prominent; however, at a minimum, the educational
institution must publish the conditions or requirements on a publicly
facing website and in their catalog, and include them in any
publication (regardless of medium) which explicitly mentions
``educational assistance benefits for servicemembers (and their
dependents) or veterans (and their dependents)'' or which, in the view
of the Secretary, is intended for VA educational assistance
beneficiaries.
(2) Individuals continuously enrolled at the same educational
institution pursuing a program of education subject to disapproval
under paragraph (e) of this section may complete the program of
education.
(Authority: 38 U.S.C. 3679(d))
* * * * *
[FR Doc. 2023-00556 Filed 1-17-23; 8:45 am]
BILLING CODE 8320-01-P
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</html>Indexed from Federal Register on January 18, 2023.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.