400 Maryland Avenue, S.W., Washington, DC 20202

www.ed.gov

The Department of Education’s mission is to promote student achievement and preparation for global Competitiveness 

by fostering educational excellence and ensuring equal access.

UNITED STATES DEPARTMENT OF EDUCATION

OFFICE OF POSTSECONDARY EDUCATION

 

Issue Paper: Prison Education Programs

Session 1: October 4-8, 2021

Issue: Establishing in regulation a framework that an institution must follow to 

initiate and maintain a prison education program 

Statutory cites: §484(t) of the Higher Education Act of 1965, as amended (HEA)

Regulatory cites: N/A

Summary of issues: In December 2020, Congress passed the Consolidated Appropriations Act, 2021, 

that made permanent a change to allow incarcerated individuals to access Federal Pell Grant funds for 

qualifying prison education programs. This change codifies much of the Second Chance Pell experiment 

created by the Obama Administration and expanded by the Biden Administration. Research show that 

high-quality prison education programs increase learning and skills among incarcerated students, 

increase the likelihood of stable employment, and reduce the likelihood of recidivism. The Department 

seeks input from the subcommittee on implementation of the new statute, which will take effect on July 

1, 2023. In particular, we hope to gain input from the subcommittee regarding:

Student Eligibility - Congress amended section 484(t) of the HEA to allow a confined or incarcerated 

individual to access Federal Pell Grant funds (Pell Grants) to enroll in a prison education program (PEP).

Institutional Eligibility - The statute states that public, private nonprofit, or vocational postsecondary 

institutions may offer a PEP. The postsecondary institution cannot have been subject in the last five 

years to various adverse actions by the Department of Education (ED), the institution's accrediting 

agency, or the State.

Program Eligibility - In addition to fulfilling all other applicable program eligibility requirements, the 

Federal Bureau of Prisons (BOP), the applicable State Department of Corrections (DOC), or other entity 

that is responsible for overseeing correctional facilities (other entity) must determine that the PEP is

operating in the best interest of students. Credits earned in the program must be transferable to at least 

one postsecondary institution. A confined or incarcerated individual receiving a Pell Grant cannot be

enrolled in a PEP that is designed to lead to licensure or employment for an occupation if that 

occupation typically prohibits licensure or employment of formerly incarcerated individuals. 
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Reports - The statute generally requires annual reporting from participating postsecondary institutions, 

as well as evaluation by ED.

The Department has identified the following potential regulatory changes to implement parts of the 

statute:

Codify additional location status. The current regulatory definition of an additional location is 

"geographically apart from the main campus and at which the institution offers at least 50 percent of a

program and may qualify as a branch campus." The Department proposes to codify that a correctional 

facility at which a PEP is offered is an additional location. This also applies if the primary mode of 

instruction is distance education or correspondence courses. This will ensure proper reporting under 

§600.21 and will provide clarity that the locations are subject to applicable substantive change rules for 

accrediting agencies under §602.22.

Provide conditions of institutional eligibility. Currently, a postsecondary institution is not eligible to 

participate in Title IV programs if more than 25 percent of its regularly enrolled students are 

incarcerated. Institutions may apply for a waiver from ED, as outlined in regulation, to exceed the 25

percent limit. The Department proposes to provide additional clarity as to how postsecondary 

institutions may access that waiver. We also propose to explain the circumstances under which the 

Department can withdraw the waiver when an institution violates the conditions of the waiver. 

Clarify the date, extent, and duration of eligibility and eligibility removal procedures. Currently, certain 

types of programs must be approved by the Department (e.g., the first direct assessment program) in 

order to be considered eligible for Federal Title IV aid. We propose that postsecondary institutions 

similarly apply for eligibility for the institution's first PEP at the first two additional locations. This will 

ensure that postsecondary institutions offering PEPs have fulfilled each component of the statute and 

regulations before offering a PEP. We propose creating a clear application process and delineating the

conditions under which ED can withdraw an institution's eligibility to offer a PEP using Title IV financial 

aid if the postsecondary institution fails to comply with the requirements of the regulations. 

Ensure institutions report additional PEPs at additional locations. Currently, eligible postsecondary 

institutions are required to report the addition of certain types of program offerings to ED within 10 

days of adding such programs. We propose to add to the list that the addition of a PEP at each 

additional location must be reported so that ED can ensure that postsecondary institutions are meeting 

reporting obligations.

Codify the definition of quality indicators for eligible programs. Define the quality indicators that a

BOP, DOC, or another correctional authority with oversight will use to determine if a PEP will serve in 

the “best interest of students,” as required by the statute. ED proposes to clarify in regulation what the 

“best interest of students” means; the BOP, DOC, or other entity will determine whether schools meet 

that definition. 
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We propose to consider the BOP, DOC, or other entity to have determined that PEPs serve in the best 

interests of students if:

• They determine that, for indicators that are “inputs” from schools, such as those in (B)(iii)(V)-

(VII), the PEPs match at least the same standards of programs offered by those institutions 

outside of prison facilities. This will ensure that incarcerated students have the same 

educational opportunities and support services as non-incarcerated students. 

• They determine that “outcome” indicators listed in the statute, such as job placement rates and 

earnings indicators (B)(iii)(II)-(III), meet the standards described below. 

The Department is considering two ways to allow a BOP, DOC, and any other entity that is responsible 

for overseeing correctional facilities to assess “outcome” indicators:

• Compare wages and job placement rates to those of students with only a high school 

diploma/high school equivalency to create a baseline standard for institutions. 

• Compare to a reasonable expected increase in wages or job placement as compared with 

someone who was incarcerated but did not enroll in an institution of higher education, 

assuming adequate data is available to make this determination. For the wage metric, a similar 

approach for which data would be more easily obtainable would require oversight entities to 

establish a reasonable wage premium expectation, based on existing research on the overall 

effects of college in prison programs.

We seek input on the indicators listed in (B)(iii-iv)(I) describing rates of students seeking education postrelease and rates of recidivism. We also propose to add an additional completion rate indicator and seek 

input on that indicator.

The proposed definition of “outcome” quality indicators would need to exclude students who will be 

incarcerated longer than the relevant period during which, for example, earnings would be evaluated.

This will allow PEPs to enroll these students without worrying that they will count against their outcome 

indicator measurements.

We also propose that the BOP, DOC, or other entity regularly assess whether the PEP is continuing to 

operate in the best interest of students; we propose that such reviews shall occur prior to the initial 

certification and at each of the postsecondary institution's applications for recertification.

Under the law, correctional authorities must consider a variety of data points in determining whether to 

approve a program. However, postsecondary institutions that are offering their first PEP or that have 

not previously been asked to collect the necessary data may not have access to such data. To ensure 

that postsecondary institutions are able to offer programs while collecting the necessary data, 

particularly for institutions that are not already a Second Chance Pell site or an educational program 

operating in a correctional facility that does not participate in the Title IV programs, the Department 

proposes to provide the BOP, DOC or other entity with flexibility in the initial two-year period of

approval during which data collection may occur. The Department seeks comment as to whether 
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programs without relevant data in the first two years and receiving this preliminary approval should face 

other restrictions, such as enrollment growth or expansion to additional locations. 

Define prohibitions in licensure. The statute requires that an eligible PEP "not offer education that is 

designed to lead to licensure or employment for a specific job or occupation in the State if such job or 

occupation typically involves prohibitions on the licensure or employment of formerly incarcerated 

individuals in the State in which the correctional facility is located, or, in the case of a Federal 

correctional facility, in the State in which most of the individuals confined or incarcerated in such facility 

will reside upon release." ED seeks to ensure that postsecondary institutions do not offer programs to 

students if State or Federal laws would ban, exempt, or prohibit formerly incarcerated students from 

licensure or employment. A student who attends a program full-time for the full academic year, six years 

in a row will reach their lifetime limit on Pell Grants and no longer be eligible to receive additional Pell 

Grant funds, and we seek to limit the chance that a student exhausts their Pell Grant funds on a PEP that 

would not benefit them. In addition, the Department invites the subcommittee to discuss whether to 

expand the scope of exclusions to include de facto barriers to employment that exist in many fields, but 

do not rise to the level of a State or Federal legal requirement, such as employment restrictions for 

those with a criminal record, or requirements for professional licensure standards.

Clarify how existing accreditation procedures apply to PEPs. The Department proposes requiring that a 

postsecondary institution's accrediting agency review and approve at least the first PEP at each of the 

first two additional locations, including a site visit, and review the data that the institution provides to 

the BOP, DOC, or other entity to confirm that the institution meets accrediting agency standards. In 

addition, the Department invites the subcommittee to discuss whether more than two additional 

locations should be subject to this requirement.

Our proposal would also prevent postsecondary institutions subject to accreditor adverse actions that 

are not yet final from initiating any new PEPs, and require a teach-out plan for existing PEPs facing 

adverse actions in the event that the institution loses accreditation. 

Create a smooth transition from Second Chance Pell. Determine the need to clarify the transition

and/or wind-down process for postsecondary institutions currently operating eligible programs at 

Second Chance Pell sites in Federal or State correctional facilities and that may choose to convert their 

programs to the proposed PEP definition.

Provide disclosures to help students understand their options. Ensure that programs enrolling 

students in PEPs provide those students with information about:

• Educational requirements, to inform students that the PEP satisfies applicable educational 

requirements for professional licensure or certification;

• Prohibitions on licensure and employment, if there are prohibitions in the occupation for which 

the program will prepare students;
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• Portions of a program begun in prison that cannot be completed while incarcerated, if

applicable, including their options to continue the program; and 

• Opportunities for students to continue their education post-release, including information about 

transferring their credits.

Describe the process for reporting. Ensure the accurate reporting of data items in the required report to 

ED through annual instructions established by the Secretary.

Provide technical changes to conform with the statute. The Department will include technical changes 

to conform with the statute relating to the calculation of a Federal Pell Grant, student eligibility, and the 

definition of an incarcerated student.

Prior to the first day of the subcommittee on October 18, 2021, we will provide proposed amendatory 

language to both committee and subcommittee members.