Must a Prison Education Program (PEP) Lead To Licensure Or Certification?

No. New regulations effective July 1, 2023, as published in the October 28, 2022 Federal Register, do not require that incarcerated or confined individuals enrolled in a prison education program (PEP) be enrolled in a program that leads to licensure or certification. Such individuals must be enrolled in a PEP that is an eligible program under 34 CFR 668.8 by an eligible institution as defined in 600.4 or 600.6.

However, if a confined or incarcerated individual is enrolled in a program leading to licensure or certification, then the program must satisfy any requirements to sit for licensure or certification examinations required for employment in the occupation for which the program prepares the individual:

• In the state where the correctional facility is located; or
• If a federal facility, in the state where most of the confined or incarcerated individuals will reside once released, as determined by the institution at least annually and based on information provided by the oversight entity.

See the following from the U.S. Department of Education's (ED's) Prison Education Programs Questions and Answers website:

"PEP-Q17: Under 34 CFR § 668.236(a)(7) and (a)(8) the Department lays out prohibitions on enrollment that lead to professional licensure or certification that schools must follow. Specifically, both paragraphs include a clause that requires schools operating eligible PEPs in Federal correctional facilities to determine the State where most confined or incarcerated individuals will reside post release. How does a school determine that?

PEP-A17: Each year, a school that offers a PEP at a federal facility must obtain information from the oversight entity to determine the State in which confined or incarcerated individuals enrolled in eligible PEPs at that school typically reside after release. In the event of an audit or program review, the Department would verify that the school has a documented reasonable policy for making the determination that it applies consistently each year, unless the policy is amended, and has received and considered the information from the oversight entity.

If the State that most confined or incarcerated individuals will reside upon release changes, the school must ensure that the eligible PEP(s) adjusts its educational requirements and prohibition on enrollment procedures to comply with the new State’s applicable laws."

In addition, an institution offering the PEP cannot enroll an incarcerated individual into a PEP if, based on the individual’s incarceration, they would be prohibited from:

• Obtaining licensure or employment in the state where the correctional facility is located; or
• If a federal facility, in the state where most of the confined or incarcerated individuals will reside once released, as determined by the institution at least annually and based on information provided by the oversight entity.

See the following from ED's Prison Education Programs Questions and Answers website:

"PEP-Q16: The regulations under 34 CFR § 668.236(a)(8) state that a school is prohibited from enrolling a confined or incarcerated individual in an eligible PEP that is designed to lead to licensure or employment for a specific job if that individual would be prohibited from obtaining licensure or employment for a specific job based on the law in the State where the facility is located or a Federal law.

Does a school have to consider anything other than State or Federal laws in deciding whether to admit a confined or incarcerated individual into an eligible PEP designed to lead to licensure?

PEP-A16: No. Under § 668.236(c)(3) schools are not required to consider local laws, screening requirements for good moral character (or similar provisions), State or Federal laws that have been repealed, even if the repeal has not yet taken effect or if the repeal occurs between assessments of the school by the oversight entity. Schools also do not have to consider other restrictions determined by the Department to be inapplicable. "

See also Section 484(t) of the Higher Education Act of 1965 (HEA), as amended, [20 USC 1091t].