[Federal Register Volume 74, Number 208 (Thursday, October 29, 2009)]
[Rules and Regulations]
[Pages 55902-55969]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-25373]
[[Page 55901]]
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Part II
Department of Education
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34 CFR Parts 600, 668, 675, et al.
General and Non-Loan Programmatic Issues; Final Rule
Federal Register / Vol. 74, No. 208 / Thursday, October 29, 2009 /
Rules and Regulations
[[Page 55902]]
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DEPARTMENT OF EDUCATION
[Docket ID ED-2009-OPE-0005]
34 CFR Parts 600, 668, 675, 686, 690, and 692
RIN 1840-AC99
General and Non-Loan Programmatic Issues
AGENCY: Office of Postsecondary Education, Department of Education.
ACTION: Final regulations.
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SUMMARY: The Secretary amends the regulations for Institutional
Eligibility Under the Higher Education Act of 1965, the Student
Assistance General Provisions, the Federal Work-Study (FWS) Programs,
the Teacher Education Assistance for College and Higher Education
(TEACH) Grant Program, the Federal Pell Grant Program, and the
Leveraging Educational Assistance Partnership Program (LEAP) to
implement various general and non-loan provisions of the Higher
Education Act of 1965 (HEA), as amended by the Higher Education
Opportunity Act of 2008 (HEOA) and other recently enacted legislation.
DATES: Effective Date: These regulations are effective July 1, 2010.
Implementation date: The Secretary has determined, in accordance
with section 482(c)(2)(A) of the HEA, that institutions may, at their
discretion, choose to implement the new and amended provisions of
Sec. Sec. 600.32(d), 668.28, 668.23(d)(4), 668.43, 675.16, 675.18(g),
675.18(i), 686.41, and 686.42 on or after November 1, 2009. For further
information, see the section entitled Implementation Date of These
Regulations in the SUPPLEMENTARY INFORMATION section of this preamble.
FOR FURTHER INFORMATION CONTACT: For general information or information
regarding these regulations related to the non-title IV revenue
requirement (90/10), John Kolotos. Telephone: (202) 502-7762 or via the
Internet at: [email protected].
For information related to all Federal Pell Grant Program issues
and the LEAP/GAP Program, Fred Sellers and Jacquelyn Butler. Telephone:
(202) 502-7502 and (202) 502-7890, respectively or via the Internet at:
[email protected] or [email protected].
For information related to the provisions for readmission for
servicemembers, teach-outs, peer-to-peer file sharing, baccalaureate in
liberal arts, and institutional plans for improving the academic
program, Wendy Macias. Telephone: (202) 502-7526 or via the Internet
at: [email protected].
For information related to all FWS Program issues, Nikki Harris and
Harold McCullough. Telephone: (202) 219-7050 and (202) 377-4030,
respectively, or via the Internet at [email protected] or
[email protected].
For information related to the provisions for fire safety
standards, missing students procedures, hate crime reporting, emergency
response and evacuation, and students with intellectual disabilities,
Jessica Finkel. Telephone: (202) 502-7647 or via the Internet at:
[email protected].
For information related to the provisions for extenuating
circumstances under the TEACH Grant Program, Jacquelyn Butler.
Telephone: (202) 502-7890 or via the Internet at:
[email protected].
For information related to the consumer information requirements,
Brian Kerrigan. Telephone: (202) 219-7058 or via the Internet at:
[email protected].
If you use a telecommunications device for the deaf (TDD), call the
Federal Relay Service (FRS), toll free, at 1-800-877-8339.
Individuals with disabilities can obtain this document in an
accessible format (e.g., braille, large print, audiotape, or computer
diskette) on request to one of the contact persons listed under FOR
FURTHER INFORMATION CONTACT.
SUPPLEMENTARY INFORMATION: On August 21, 2009, the Secretary published
a notice of proposed rulemaking (NPRM) for general and non-loan
programmatic issues in the Federal Register (74 FR 42380).
In the preamble to the NPRM, the Secretary discussed on pages 42383
through 42415 the major regulations proposed in that document to
implement provisions of the HEOA, including the following:
Amending Sec. Sec. 690.63(h), 690.64, and 690.67 to
establish the conditions under which students may receive up to two
Federal Pell Grant Scheduled Awards during a single award year.
Amending Sec. Sec. 686.12(c), 686.41, and 686.42(c) to
establish the extenuating circumstances under which a TEACH Grant
recipient may be excused from fulfilling all or part of his or her
service obligation.
Amending Sec. 675.18(g) to permit institutions to use FWS
funds to compensate students employed in projects that teach civics in
school, raise awareness of government functions or resources, or
increase civic participation.
Amending Sec. 675.18 by adding paragraph (i) to allow
institutions located in major disaster areas to make FWS payments to
disaster-affected students.
Amending Sec. Sec. 675.41 and 675.43 to revise
definitions and terms relating to work colleges.
Adding Sec. 668.28 to establish the requirement that
proprietary institutions derive at least 10 percent of their revenue
from sources other than Title IV, HEA program funds and specify how
institutions calculate the revenue percentage.
Amending Sec. 668.41(a) and (d) and Sec. 668.45 to
expand the information that institutions must make available to
prospective and enrolled students to include information on: the
employment and placement of students; the retention rates of first-
time, full-time undergraduate students; the placement rate for any
program offered by the institution, if the institution calculates this
rate; and the completion and graduation rate data that is disaggregated
by gender, race, and grant or loan assistance.
Amending Sec. 668.41(e) to provide that institutions that
maintain on-campus housing facilities must publish annually a fire
safety report, maintain a fire log, and report fire statistics to the
Department.
Amending Sec. 668.46 by adding paragraph (h) to require
institutions that provide on-campus housing facilities to develop and
make available a missing student notification policy and allow students
who reside on campus to confidentially register contact information.
Amending Sec. 668.46(c) to expand the list of crimes that
institutions must include in the hate crimes statistics reported to the
Department.
Amending Sec. 668.46 by adding paragraph (g) to require
institutions to include in their annual security report a statement of
emergency response and evacuation procedures.
Adding subpart O to 34 CFR part 668, to specify the
conditions under which students with intellectual disabilities may
receive Federal Pell Grant, FWS, and FSEOG Program funds.
Adding Sec. 668.18 to establish requirements under which
an institution must readmit servicemembers to the same academic status
they had when they last attended the institution.
Amending Sec. 600.32(d) to provide that an institution
that conducts a teach-out at a site of a closed institution may,
[[Page 55903]]
under certain conditions, establish that site as an additional
location.
Amending Sec. 600.5(a) and (e) to include in the
definition of ``proprietary institution of higher education'' an
institution that provides a program leading to a baccalaureate degree
in liberal arts, if the institution provided that program since January
1, 2009, and has been accredited by a regional accrediting agency since
October 1, 2007, or earlier.
Amending Sec. 668.14(b) to provide that an institution
must have developed and implemented written plans to effectively combat
unauthorized distribution of copyrighted material and that the
institution will offer alternatives to illegal downloading or peer-to-
peer distribution of intellectual property.
Amending Sec. 668.43(a) to include, as part of the
information an institution must make available to prospective and
enrolled students, a description of any plans the institution has to
improve its academic program.
Amending Sec. 692.10(b) to provide that the non-Federal
share of student grants or work-study jobs under the LEAP Program must
be State funds and that the non-Federal share no longer has to come
from a direct appropriation of State funds.
Amending Sec. 692.21(k) to provide that the State program
must notify students that grants are LEAP Grants that are funded by the
Federal Government, the State, and, for LEAP Grants to students under
the new Grants for Access and Persistence (GAP) Program, other
contributing partners.
Adding subpart C to 34 CFR part 692 to establish the
activities, awards, allotments to States, matching funds requirements,
consumer information requirements, application requirements, and other
requirements needed to begin and continue participating in the GAP
Program.
Technical Amendments
In addition to the changes necessary to implement provisions of the
HEOA, these final regulations also incorporate technical amendments
made to the HEA by The Higher Education Technical Corrections (Pub. L.
111-39), enacted on July 1, 2009. These changes are as follows: In
Sec. 690.75(e) we proposed that a student whose parent was in the
Armed Forces and died in Iraq or Afghanistan could receive the maximum
Federal Pell Grant eligibility if the student was under 24 years old or
enrolled in an institution of higher education at the time the parent
died, in accordance with section 401(f)(4) of the HEA, as amended by
the HEOA. However, Public Law 111-39 removed section 401(f)(4) from the
HEA and added new sections 473(b) and 420R effective July 1, 2009.
Section 401(f)(4) provided that, for purposes of Federal Pell Grants
only, a student was deemed to have an expected family contribution
(EFC) of zero if the student's parent was in the Armed Forces and died
in Iraq or Afghanistan when the student was under 24 years old or
enrolled in an institution of higher education at the time the parent
died.
Section 473(b) was added to Part F--Need Analysis of the HEA and
provides that, beginning with the 2009-2010 and succeeding award years,
each student with a Federal Pell Grant-eligible EFC whose parent or
guardian was a member of the Armed Forces of the United States and died
as a result of performing military service in Iraq or Afghanistan after
September 11, 2001, will be determined to have an EFC of zero that will
generally apply to all Title IV, HEA programs. Because part F of the
HEA, where these changes are reflected, is subject to section 478(a) of
the HEA, which generally prohibits regulating the requirements in part
F, we are removing proposed Sec. 690.75(e).
Section 420R of the HEA establishes a new, non-need-based program
called the Iraq and Afghanistan Service Grants Program (IASG Program)
starting in the 2010-2011 award year. To qualify for an IASG, a student
must have a parent or guardian who died as a result of military service
in Iraq or Afghanistan after September 11, 2001, and must be, at the
time of the parent or guardian's death, less than 24 years of age or
enrolled at an institution of higher education. A qualifying student
who is not eligible for a Federal Pell Grant would be eligible to
receive an IASG that is the same amount as a maximum Federal Pell Grant
to assist in paying the student's cost of attendance at an institution
of higher education. Grants under the IASG Program may not exceed the
student's cost of attendance, and payments are adjusted like Federal
Pell Grants if the student is enrolled less than full-time; unlike
Federal Pell Grants, IASG Program grants are not considered to be
estimated financial assistance. Under this program, the student's EFC
will not be changed as a result of a parent or guardian's service.
Regulations are necessary to implement this Title IV, HEA program.
However, section 409 of Public Law 111-39 waives the provisions of
sections 482 and 492 of the HEA concerning the master calendar for
regulatory effective dates and the requirement to use negotiated
rulemaking to formulate regulations for the IASG Program. We,
therefore, expect to initiate the regulatory process without negotiated
rulemaking and adopt the necessary regulations that would be effective
on July 1, 2010, for the 2010-2011 award year.
Section 401(a)(6) of Public Law 111-39 also amended
section 415E(b)(1)(B) of the HEA governing allotments to States under
the Grants for Access and Persistence Program (GAP). The allotment
formula provides that a State with a prior year allotment shall receive
not less than that amount in the next year's allotment. The HEA
provides that, if a State received an allotment for 2010-2011 under 34
CFR part 692, subpart B, the Special Leveraging Educational Assistance
Partnership Program (SLEAP), the State's 2011-2012 allotment for the
GAP Program shall not be less than its 2010-2011 SLEAP allotment. We
are revising Sec. 692.110(a) to reflect this statutory change. We are
also revising appendix A to subpart C of part 692 that provides a case
study illustrating the requirements for allotting funds under the GAP
Program to reflect these changes to the regulations.
We have also made a number of minor technical corrections and
conforming changes. Changes that are statutory or that involve only
minor technical corrections are generally not discussed in the Analysis
of Comments and Changes section.
Waiver of Proposed Rulemaking for Additional Conforming Changes
These final regulations incorporate a statutory change made to the
HEA by the HEOA that was not included on Team V's negotiating agenda or
in the NPRM published on August 21, 2009. However, this statutory
change in section 485(h) of the HEA is referenced in Sec. 602.24 of
the Team III (Accreditation) final regulations published in the Federal
Register as Docket ID ED-2009-OPE-0009. We are amending Sec. 668.43(a)
of these regulations to reflect the statutory provisions by adding new
paragraph (a)(11).
We are also amending Sec. 690.6 by adding paragraph (e) to reflect
a statutory change made by the HEOA to section 401(c)(5) of the HEA.
Section 690.6(e) provides that, if a student receives a Federal Pell
Grant for the first time on or after July 1, 2008, the student may
receive no more than the equivalent of nine Scheduled Awards.
Because these amendments implement changes to the HEA that were not
negotiated, we do not discuss them in the Analysis of Comments and
Changes section.
[[Page 55904]]
Under the Administrative Procedure Act (5 U.S.C. 553) (APA), the
Department is generally required to publish a notice of proposed
rulemaking and provide the public with an opportunity to comment on
proposed regulations prior to issuing final regulations. In addition,
all Department regulations for programs authorized under title IV of
the HEA are subject to the negotiated rulemaking requirements of
section 492 of the HEA. However, both the APA and the HEA provide for
exemptions from these rulemaking requirements. The APA provides that an
agency is not required to conduct notice-and-comment rulemaking when
the agency for good cause finds that notice and comment are
impracticable, unnecessary, or contrary to the public interest.
Similarly, section 492 of the HEA provides that the Secretary is not
required to conduct negotiated rulemaking for Title IV, HEA program
regulations if the Secretary determines that applying that requirement
is impracticable, unnecessary, or contrary to the public interest
within the meaning of the HEA.
Although the regulations implementing the HEOA are subject to the
APA's notice-and-comment and the HEA's negotiated rulemaking
requirements, the Secretary determined that it was unnecessary to
conduct negotiated rulemaking or notice-and-comment rulemaking on the
changes needed in Sec. 668.43. These changes simply amend the
Department's regulations to reflect statutory changes made by the HEOA
to paragraph (h) of section 485 of the HEA, and these changes are
already effective. The Secretary does not have discretion in whether or
how to implement these changes. Accordingly, negotiated rulemaking and
notice-and-comment rulemaking are unnecessary.
Implementation Date of These Regulations
Section 482(c) of the HEA requires that regulations affecting
programs under title IV of the HEA be published in final form by
November 1 prior to the start of the award year (July 1) to which they
apply. However, that section also permits the Secretary to designate
any regulation as one that an entity subject to the regulation may
choose to implement earlier and the conditions under which the entity
may implement the provisions early.
Consistent with the intent of this regulatory effort to strengthen
and improve the administration of the Title IV, HEA programs, the
Secretary is using the authority granted him under section 482(c) of
the HEA to designate the following new and amended provisions for early
implementation, at the discretion of each institution, lender, guaranty
agency, or servicer, as appropriate:
The closed school teach out provisions in Sec. 600.32(d).
The readmission requirements for returning servicemembers
in Sec. 668.18.
The 90/10 revenue requirements in Sec. Sec. 668.28 and
668.23(d)(4).
The institutional information requirements in Sec.
668.43.
The FWS provisions in Sec. Sec. 675.16, 675.18(g), and
675.18(i).
The teach grant provisions regarding extenuating
circumstances in Sec. Sec. 686.12, 686.41, and 686.42.
In addition, the revisions to Sec. Sec. 690.63, 690.64, and 690.67
of the Federal Pell Grant Program regulations may apply to the
crossover payment period that is in both the 2009-10 and 2010-11 award
years, i.e., a payment period that includes June 30, 2010, and July 1,
2010. If an institution does not implement these regulations prior to
July 1, 2010, but, prior to July 1, 2010, designates a student's 2010
crossover payment period as being in the 2009-10 award year, the
Secretary does not consider these revisions to be applicable to the
crossover payment period. Nothing will prevent the institution from
subsequently designating the 2010 payment period as being in the 2009-
10 award year with the revisions to Sec. Sec. 690.63, 690.64, and
690.67 then being applicable.
Analysis of Comments and Changes
Except as noted under Waiver of Proposed Rulemaking for Additional
Conforming Changes, the regulations in this document were developed
through the use of negotiated rulemaking. Section 492 of the HEA
requires that, before publishing any proposed regulations to implement
programs under title IV of the HEA, the Secretary must obtain public
involvement in the development of the proposed regulations. After
obtaining advice and recommendations, the Secretary must conduct a
negotiated rulemaking process to develop the proposed regulations. The
negotiated rulemaking committee did not reach consensus on the proposed
regulations that were published on August 21, 2009. The Secretary
invited comments on the proposed regulations by September 21, 2009.
More than 113 parties submitted comments, a number of which were
substantially similar. An analysis of the comments and of the changes
in the regulations since publication of the NPRM follows.
We group major issues according to subject, with appropriate
sections of the regulations referenced in parentheses. We discuss other
substantive issues under the sections of the regulations to which they
pertain. Generally, we do not address minor, non-substantive changes,
recommended changes that the law does not authorize the Secretary to
make, or comments pertaining to operational processes. We also do not
address comments pertaining to issues that were not within the scope of
the NPRM.
Part 600 Institutional Eligibility Under the Higher Education Act of
1965, as Amended
Definition of Baccalaureate Liberal Arts Programs Offered by
Proprietary Institutions (Sec. 600.5)
Comments: One commenter supported the proposed change, stating that
it was a reasonable way to clarify the term program leading to a
baccalaureate degree in liberal arts. One commenter stated that the
requirement that an institution ``has provided that program since
January 1, 2009'' should be interpreted to mean that any new liberal
arts program added from January 1, 2009, forward will qualify an
otherwise eligible institution as an eligible proprietary institution,
so long as the institution has been accredited by a recognized regional
accrediting agency or association since October 1, 2007, or earlier.
Discussion: The Department does not agree that the requirement that
the institution ``has provided that program since January 1, 2009''
should be interpreted to mean that any new liberal arts program added
from January 1, 2009, forward will qualify an otherwise eligible
institution as an eligible proprietary institution. Rather, the
requirement means that an institution was providing the program (i.e.,
was enrolling students in the program) on January 1, 2009, and has
continued to do so.
Changes: Section 600.5(a)(5)(i)(B)(1) has been revised to clarify
that an institution meets the definition of a proprietary institution
of higher education if, in addition to being accredited by a recognized
regional accrediting agency or association continuously since October
1, 2007, it has provided a program leading to a baccalaureate degree in
liberal arts continuously since January 1, 2009.
[[Page 55905]]
Institutional Requirements for Teach-Outs and Eligibility and
Certification Procedures (Sec. Sec. 600.2, 600.32, 668.14)
Comments: Several commenters supported the proposed changes. One
commenter stated that Sec. 600.32(d) should be expanded to provide
that the exemptions from the two-year in existence requirement, the
assumption of liabilities, and the assumption of the cohort default
rate apply when an institution conducts a teach-out at an institution
that closes because a guaranty agency initiated an action to limit,
suspend, or terminate (LS&T) the participation of an institution, or
took an emergency action against the institution. One commenter
explained that a closing can be a very confusing time for students if
they were not given accurate information about what was happening at
their institution, and urged the Department to monitor closely the
process for establishing an additional location under these
regulations. The commenter noted that accurate and effective
communication to students is especially critical when the teach-out
institution is establishing a permanent location at a closed
institution. The commenter asserted that an institution establishing a
permanent location at the site of a closed institution must be able to
provide a teach-out option that meets appropriate quality standards
even in cases when the prior institution did not meet these standards.
The commenter stated that the mere submission of a teach-out plan
should not be viewed as evidence that these standards were met for
purposes of the closed school discharge.
Discussion: LS&T and emergency actions initiated by a guaranty
agency against an institution are promptly reported to the Department,
and the Department investigates those reports to determine whether to
initiate a separate LS&T or emergency action against the institution.
Therefore, we do not believe it is necessary to include as a trigger an
LS&T or emergency action initiated by a guaranty agency that would
provide the two-year requirement, liability, and default rate
exemptions to an institution conducting a teach-out at a closed
institution. Because of the interplay between the actions taken by a
guaranty agency and the Department, there may be some instances when an
institution may close prior to the Department initiating an LS&T or
emergency action. In other instances, an institution may close
precipitously before the Department has time to initiate an appropriate
action under the circumstances. To address these instances, the final
regulations have been modified so that the action taken by the
Department may be initiated after the institution closes. The
Department recognizes that a school closure and teach-out can be a
confusing time for students, and intends to work closely with the
States and accrediting agencies to make sure that students are given
accurate information about their options during this transition. The
opportunity for another institution to perform the teach-out, and open
a permanent location under this exemption, should also ensure that the
teach-out is adequately staffed and designed to serve the students that
attended the closed school.
Changes: Section 600.32(d)(1)(i) is revised to clarify that an
institution that conducts a teach-out at a site of a closed institution
may apply to have that site approved as an additional location if the
closed institution ceased operations because the Secretary has taken an
LS&T or emergency action, regardless of whether the Secretary took that
action before or after the institution closed.
Part 668 Student Assistance General Provisions
Readmission Requirements for Servicemembers (Sec. 668.18)
Comments: One commenter supported the proposed regulations,
including the proposed requirement limiting the institutional charges
that an institution may charge a returning servicemember. Several
commenters opposed the proposed requirement limiting the institutional
charges that an institution may charge a returning servicemember
because they stated it would be administratively and financially
burdensome for institutions. For the same reason, some of these
commenters also opposed the requirement that an institution waive
charges for previously purchased equipment for the first academic year
in which the servicemember returns if the returning servicemember is
readmitted to the same program for the same reason. Many of these
commenters asserted that, because many of the affected servicemembers
will receive full tuition and fee benefits under the Post-9/11 GI Bill,
charging the returning servicemember the current institutional charges
for a program, rather than the same charges that the returning
servicemember was or would have been assessed for the academic year
during which he or she left the institution, will not penalize the
student for having left to serve in the uniform services. One commenter
added that this argument is supplemented by the fact that at least one
State waives any tuition charges not paid by the GI Bill at public
universities. One of these commenters stated that limiting charges to
the first year only would create an unrealistic expectation for
returning servicemembers for the full cost of the program. A few of the
commenters stated that limiting institutional charges for returning
servicemembers would be unfair to other students at the institution who
would assume higher costs, or noted that the proposed requirement could
preempt State requirements.
Several commenters asserted that the forced manual billing
determinations that the regulations would require of institutions would
be unduly burdensome as the billing software used by most institutions,
which uses pre-programmed data, including current year charges, does
not accommodate special case situations, such as the proposed
regulations would create. Specifically, a few commenters noted that
institutions would be forced to maintain multi-faceted data tables over
an undetermined number of years to recreate the prior institutional
charges for servicemembers who may or may not return, as institutions
do not keep student financial records for the entire period covered by
the readmission requirements and billing systems are not designed to
archive the data necessary to calculate institutional charges years
later. The commenters contended that, even if an institution has all
the information necessary, recreating the institutional charges would
be complicated as institutional charges cover many types of charges
involving variations by program. One commenter asserted that some
Department of Defense tuition assistance systems, such as GoArmy, do
not allow variations in tuition rates and could potentially delay
tuition assistance processing for both impacted and nonimpacted
servicemembers. A few commenters stated that determining institutional
charges for returning servicemembers who may have been admitted, but
were not enrolled or attending prior to leaving to serve, would be
particularly difficult as they had never incurred specific charges,
with one of these commenters noting that their institution has an open
admission policy resulting in a large number of these students.
One commenter generally supported the requirement limiting the
institutional charges that an institution may charge a returning
servicemember, but stated that an institution should be permitted to
charge a returning servicemember for new classes when a program has
changed, requiring the servicemember to take additional
[[Page 55906]]
classes in the form of prerequisites or new requirements. A few
commenters noted that requiring an institution to provide, if
necessary, refresher courses at no extra cost seemed to preclude an
institution from collecting funding from other entities to cover those
expenses. One commenter stated that requiring an institution to make
reasonable efforts to help the servicemember become prepared to resume
the program or to enable the servicemember to complete the program at
no extra cost, would impose an undue financial hardship and
administrative burden on the institution. The commenter asserted that,
when there is only the normal reasonable progression from one year to
the next, rather than any actual change to the program in the
servicemember's absence, it is the servicemember's responsibility to
retain the knowledge attained in the normal course of educational
progression. In addition, the commenter stated that the definition of
``reasonable efforts'' is ambiguous and would be difficult to
determine.
Discussion: The Department believes that the goal of these
provisions is to minimize the disruption to the lives of persons
performing service in the uniformed services, allowing a servicemember
to return to an institution without penalty for having left because of
that service. We believe that limiting charges for the year in which
the servicemember returns to the charges the servicemember was or would
have been assessed for the academic year during which the servicemember
left is an important part of this goal, and may necessitate additional
efforts by institution as well as the absorption of some costs.
However, we agree that this goal would still be achieved if any
increase in charges from the amount the servicemember was or would have
been assessed for the academic year during which the servicemember left
the institution is covered by veterans' or servicemember education
benefits. In addition, we believe that requiring institutions to
maintain only past tuition and fee charges, rather than requiring them
to maintain all institutional charges and waive charges for new
equipment required in lieu of equipment previously paid for, will
accomplish this goal, while minimizing burden to institutions that may
have had difficulty determining the previous institutional charges
beyond tuition and fees, as well as difficulty determining which of the
current institutional charges beyond tuition and fees would be covered
by veterans' and servicemember education benefits. Therefore, for a
servicemember who is readmitted to the same program, an institution
will be considered to have admitted the servicemember with the same
academic status if, for the first academic year in which the
servicemember returns, the institution does not increase the tuition
and fee charges above the prior amount the servicemember was or would
have been assessed for the academic year when the servicemember left
the institution, unless there are sufficient veterans' education
benefits or other servicemember education benefits to pay the increased
amount of those tuition and fee charges. Consider, for example, a
servicemember who is readmitted to the same program and was assessed
tuition and fee charges of $5,000 for the academic year when the
servicemember left the institution. The current tuition and fee charges
for the program are $7,000, a $2,000 increase over the charges formerly
assessed the student. In addition to the original $5,000 in charges,
the institution may charge the readmitted servicemember for any portion
of that $2,000 increase that will be covered by veterans' education
benefits or other servicemember education benefits. If this student
receives $1,000 in veterans' education benefits or other servicemember
education benefits for tuition and fees, the institution may assess the
student tuition and fee charges of up to $6,000. If the student
receives $2,000 or more in veterans' education benefits or other
servicemember education benefits for tuition and fees, the institution
may assess up to $7,000, the tuition and fee charges for other students
admitted to the program for the current academic year. This approach
will significantly reduce the burden on institutions to track many of
the variable charges that were included in the proposed regulation, and
will simplify the determinations of what tuition or fee amounts would
be subject to the one-year transition period for a returning
servicemember. The portion of tuition and fees that are subject to this
temporary restriction may also be reduced or eliminated by other
policies set by the institution, or under State law, but the Federal
requirement will provide a consistent base line for all institutions in
every State and serve the purpose intended by this provision in the
law.
We agree that students who are not informed of any increase in
tuition and fee charges for subsequent years may have unrealistic
expectations of the total cost of the program. We would expect that an
institution would actively inform affected servicemembers upon
readmission of any subsequent increase and the total expected charges
for the program (an institution is required to make this information
available at all times and include it in its annual distribution of
institutional and financial information to all enrolled students in
accordance with Sec. 668.41(c) and (d)). To the extent that this
temporary restriction on the amount of tuition and fees for returning
servicemembers is a benefit not provided to the other students at an
institution, it is provided under the law to ease the transition back
to the institution for the returning servicemembers. We also believe
that this provision will not create conflicts for benefits provided to
other servicemembers under the GoArmy education program.
Although we appreciate that current institutional billing software
may not easily accommodate affected servicemembers, we believe that any
burden incurred by an institution that must manually process such a
student is outweighed by the benefit to the returning servicemember. We
also believe that limiting the covered costs to tuition and fees
significantly simplifies this provision for institutions.
In accordance with Sec. 668.18(a)(2)(iv), an institution may not
charge a returning servicemember for additional classes offered by the
institution that are prerequisites for the program. The institution
does not have to readmit such a servicemember if the institution can
demonstrate that providing the classes at no cost places an undue
hardship on the institution. If new classes are required for the
program and those classes are taken by the servicemember in the
academic year in which he or she returns, the institution may not
charge the additional tuition and fees for those programs unless doing
so does not increase the tuition and fee charges above the prior amount
the student was or would have been assessed for the academic year when
he or she left the institution, or there are sufficient veterans'
education benefits or other servicemember education benefits to pay the
increased amount of those tuition and fee charges. In requiring an
institution to provide, if necessary, refresher courses at no extra
cost, we did not intend to preclude an institution from collecting
funding from other assisting agencies to cover those expenses. Also, we
note that any reasonable efforts an institution must make to help the
student become prepared to resume the program, or to enable the student
to complete the
[[Page 55907]]
program must be provided at no extra cost to the student. We do not
agree that requiring an institution to make reasonable efforts to help
a servicemember become prepared to resume the program or to enable the
servicemember to complete the program at no extra cost, would
automatically impose an undue financial hardship and administrative
burden on the institution, nor do we agree that, in cases where there
is only the normal reasonable progression from one year to the next,
rather than any actual change to the program in the servicemember's
absence, it is the servicemember's responsibility to retain the
knowledge attained in the normal course of educational progression.
Again, the goal of these provisions is to minimize the disruption to
the lives of persons performing service in the uniformed services,
allowing a servicemember to return to an institution without penalty
for having left because of that service. Holding a servicemember
responsible for retaining all knowledge attained through previous
attendance of the program would be penalizing the servicemember for
having left to serve. ``Reasonable efforts'' are actions that do not
place an undue hardship on an institution. An action places an undue
hardship on an institution if it requires significant difficulty or
expense to the institution. The mere fact that the readmission of a
student will create additional expenses or burden to the institution is
not enough for an institution to deny a student readmission. The
expenses must be significant when considered in light of the overall
financial resources of the institution and the impact otherwise of such
action upon the operation of the institution. An institution carries
the burden to prove by a preponderance of the evidence that the expense
or difficulty of readmitting a student would be significant.
Changes: Section 668.18(a)(2)(iii)(E) is revised to provide that,
for a servicemember who is readmitted to the same program, an
institution will be considered to have admitted the servicemember with
the same academic status if, for the first academic year in which he or
she returns, the institution does not increase the tuition and fee
charges above the prior amount the student was or would have been
assessed for the academic year when the student left the institution,
unless there are sufficient veterans' education benefits or other
servicemember education benefits to pay the increased amount of those
tuition and fee charges. Proposed Sec. 668.18(a)(2)(iii)(F), which
would have required an institution to waive charges for previously
purchased equipment, is removed. Section 668.18(a)(2)(iv)(A) has been
revised: (1) To make clear that any reasonable efforts an institution
must make to help the servicemember become prepared to resume the
program, or to enable the servicemember to complete the program must be
provided at no extra cost, and (2) to make clear that those efforts
must be provided at no extra cost to the student, to permit an
institution to collect from other entities for costs associated with
making such reasonable efforts. The definition of undue hardship in
Sec. 668.18(a)(2)(iv)(C)(2) is amended to clarify that difficulty and
expenses must be significant when considered in light of the overall
financial resources of the institution and the impact otherwise of such
action on the operation of the institution.
Comments: One commenter asked what would be required of an
institution to ``promptly readmit'' an affected servicemember if the
program to which the servicemember was previously admitted is offered
infrequently, or is no longer offered. One commenter asked how long a
servicemember may delay readmission to an institution by requesting to
be readmitted at a later date, and at what point the institutional
charges would be locked in. The commenter also questioned whether the
unusual circumstances under which an institution may admit a
servicemember at a date later than the next class or classes in the
program pertain to the institution or just to the servicemember.
Discussion: If the program to which the servicemember was
previously admitted is no longer offered, Sec. 668.18(a)(2)(iii)(A)
requires the institution to admit the servicemember to the program that
is most similar to that program, unless the student requests or agrees
to admission to a different program. An institution readmits a
servicemember ``promptly'' if, in accordance with Sec.
668.18(a)(2)(ii), the institution readmits the servicemember into the
next class or classes in the program beginning after he or she provides
notice of his or her intent to re-enroll, unless the servicemember
requests a later date of readmission or unusual circumstances require
the institution to admit the servicemember at a later date.
These regulations presume that a returning servicemember who
provides notice of his or her intent to reenroll at an institution
plans to do so soon after providing such notice. The provision that an
institution must admit a returning servicemember to the next class or
classes in the student's program unless the student requests a later
date of admission was included to ensure that an institution could not
delay a servicemember's readmission until, for example, the next
semester if classes in the student's program were offered during the
upcoming semester. However, the regulations do not preclude the
returning servicemember from deciding that a later admission date, such
as the next semester, is acceptable. No matter when the student
actually resumes his or her program, if the returning servicemember is
within the window of eligibility in Sec. 668.18(c)(iii), the
requirements of this section apply. Thus, for the first academic year
in which the servicemember returns, the institution cannot increase the
tuition and fee charges above the prior amount the servicemember was or
would have been assessed for the academic year when the servicemember
left the institution, unless there are sufficient veterans' education
benefits or other servicemember education benefits to pay the increased
amount of those tuition and fee charges. Unusual circumstances under
which an institution may admit a servicemember at a date later than the
next class or classes in the program may pertain to the institution or
to the servicemember. There are a number of factors an institution may
consider when determining whether unusual circumstances require a later
date of readmission, such as the length of any necessary retraining or
intervening changes in the circumstances of the institution. State laws
or requirements (including any local law or ordinance) or institutional
requirements that restrict enrollment, due to class size, for example,
or otherwise conflict with the requirements of this section are not
``unusual circumstances'' as such laws and requirements are superseded
by the requirements of this section for the initial enrollment period.
Institutions should take reasonable steps to resolve such restrictions
as soon as possible to come into compliance with those provisions.
Changes: None.
Non-Title IV Revenue Requirement
Compliance Audits and Audited Financial Statements (Sec. 668.23)
Comments: A few commenters asked the Department to clarify the
proposed requirement in Sec. 668.23(d)(4) under which a proprietary
institution must disclose in a footnote to its audited financial
statements the 90/10 revenue percentage and the components of that
percentage. The commenters suggested
[[Page 55908]]
that the Department specify that the reference in the regulations to
Federal revenue means Title IV, HEA revenue and confirm their
understanding that an institution must disclose: (1) The dollar amount
of the numerator and denominator of the 90/10 ratio; (2) the dollar
amount of the temporary relief attributed to institutional loans under
the Net Present Value (NPV) calculation; and (3) the amount of loan
funds that exceed the loan limits in effect before ECALSA that are
treated as non-Federal revenue in the denominator of the 90/10 ratio.
Discussion: Under proposed Sec. 668.23(d)(4), a proprietary
institution would have to disclose, by source, the amount of Federal
and non-Federal revenue the institution included in its 90/10
calculation. We are amending the regulations to clarify that ``source''
means the individual categories of revenues identified in Appendix C to
subpart B of part 668. To calculate its 90/10 percentage, an
institution would have to compile the information detailed in Appendix
C, particularly the aggregated and adjusted amounts in section 2. We
therefore believe that it is reasonable to require the institution to
disclose this information. Given the added complexities that come from
these additional categories of revenue, disclosing the institution's
calculation will simplify the presentation in the financial statements
and facilitate the review of that information by the Department.
Changes: Section 668.23(d)(4) is amended to provide that a
proprietary institution must disclose in a footnote to its audited
financial statements, the dollar amount of the numerator and
denominator of its 90/10 ratio as well as the individual revenue
amounts identified in section 2 of Appendix C to part 668.
Revenue Generated From Programs and Activities (Sec. 668.28)
Comments: One commenter asked the Department to clarify whether the
revenue from students taking a course offered by an institution as part
of an eligible Title IV, HEA educational program counts for 90/10
purposes if the students are taking the course to prepare for an
industry recognized credential or to transfer to another institution.
For example, students that are not enrolled in a Title IV, HEA-eligible
program take an Accounting 400 course, normally offered as part of a
Title IV, HEA-eligible accounting program, as a refresher course to sit
for the Certified Public Accounting exam or to transfer the credits
from the course to another institution.
Discussion: An institution may count the revenue described by the
commenter as long as the course or program is offered for the purpose
of preparing students for taking an examination for an industry
recognized credential, or for any other purpose described in Sec.
668.28(a)(3)(iii) that would otherwise qualify the revenue from that
course or program to be included in the 90/10 calculation. However,
payments from a student taking the class for transfer credits would not
count as revenue because the student is not taking the class for any of
these purposes. An institution should make sure that it appropriately
documents any revenue the institution includes from these classes in
its 90/10 calculation.
Changes: None.
Revenue Generated From Institutional Aid (Sec. 668.28)
Comments: A few commenters asked the Department to clarify whether
installment sales contracts are considered to be loans made to students
under Sec. 668.28(a)(5)(i). Other commenters noted that funds are not
advanced to a student under an installment sales contract, and funds
are not paid in full to a student's account. Rather, an installment
sales contract is paid over time by the student to the institution. As
a result, the commenters concluded that installment sales contracts
should not be treated as loans under the NPV formula.
Some commenters asked for clarification of the preamble discussion
(74 FR 42390) regarding the disposition of third-party loans made to
students that are subsequently acquired by the institution.
Other commenters urged the Department to reconsider the provision
in Sec. 668.28(a)(5)(iv) that a tuition discount is a form of a
scholarship that must be disbursed from a restricted account with funds
from an outside source. The commenters stated that treating a tuition
discount in this way is inconsistent with the intent of the HEOA and
would encourage students to incur more debt.
A few commenters asked the Department to clarify that payments made
by students on financing arrangements that do not qualify as
institutional loans count as cash collected by the institution for 90/
10 purposes.
Discussion: An installment sales contract was included in the
proposed regulations because we believed that it could be structured to
satisfy all of the conditions of an institutional loan that were set
forth in proposed Sec. 668.28(a)(5)(i). However, although we noted in
the preamble to the NPRM (74 FR 42389) that, to be included in the NPV
calculation, an installment sales contract that would be classified as
an institutional loan would have to be credited in full to the
student's account, this condition was not included in the proposed
regulations. To address the confusion reflected in the comments over
the qualifying conditions for institutional loans, and the general
public view that a typical installment sales contract does not provide
for funds to be credited to a student's account, we agree to remove
installment sales contracts from this section of the regulations.
With regard to a loan made by a third party to a student at an
institution, in the normal course, the proceeds of the loan would be
credited to the student's account, and the amount credited that paid
for tuition and fees not covered by Title IV, HEA aid would count as
non-Title IV, HEA revenue in the 90/10 calculation. If the institution
made the same loan itself, it would only be permitted to count the NPV
of the loan in the 90/10 calculation. In both cases the institution has
credited loan proceeds of the same value to the student's account but
the institution would derive a greater benefit for 90/10 purposes from
the loan that was made by the third party. For example, assuming the
loan proceeds from a third party pay $1,000 for tuition and fees not
covered by Title IV, HEA aid, the entire $1,000 is counted as non-
Federal revenue for 90/10 purposes. If the institution made the same
loan, the amount of funds counted as non-Federal revenue would be less
because of the NPV calculation. For instance, if the institution uses
the simpler alternative NPV approach, the amount of the non-Federal
revenue would be $500 or 50% of the loan. This different treatment of
the loan proceeds is based upon which party is making the loan to the
student without transferring it afterwards to, or from, the
institution. These provisions are not intended to permit an institution
to arrange with a third party to transfer student loans after they are
made in order to distort the way the revenue from those loans is
treated under this provision. To equalize the outcome between an
institution and a third party making and purchasing a loan, an
institution that purchases a student loan must treat it for 90/10
purposes as if the institution made the loan itself.
Similarly, if an institution makes a loan and transfers it to a
third party, the Department would not view that loan as a loan that
could be included in any NPV calculation pursuant to section
487(d)(1)(d)(III) of the HEA. That section
[[Page 55909]]
requires a loan that is included in the NPV calculation to be subject
to regular loan repayment and collection. Any institutional loan that
is sold to a third party within a year of when it was made must be
treated for 90/10 purposes as a loan made by a third party. The amount
the institution may count as non-Federal revenue may not be more than
the amount paid to the institution for that loan, less any amount the
institution agrees to pay the third party if the loan goes into default
or otherwise triggers a contingent payment by the institution.
Consistent with the Department's current treatment of recourse loans
and the requirement to use the cash basis of accounting, the
institution must adjust its 90/10 revenue for any such payment on an
institutional loan in the fiscal year when the payment is made.
We disagree with the commenters that the proposed regulations
regarding tuition discounts are inconsistent with the intent of the
law. The regulations simply reflect section 487(d)(1)(D)(iii) of the
HEA by specifying that an institution may include scholarships as
revenue if the scholarships are disbursed from an established
restricted account and that funds in that account represent designated
funds from an outside source or from income earned on those funds. That
section of the HEA states that scholarships may be provided by an
institution in the form of monetary aid or tuition discounts.
With regard to financing arrangements that are not loans, there is
no change in the Department's policy that cash payments made under
those arrangement count as non-Title IV, HEA revenue for 90/10
purposes.
Changes: Section 668.28(a)(5)(i) is revised to provide that, to be
included as an institutional loan for NPV purposes, a loan made to a
student must be credited in full to the student's account.
Net Present Value (NPV)
Comments: Several commenters objected to the provision in Sec.
668.28(b)(2) that an institution may not sell a loan it made to student
until the loan is in repayment for at least two years. Although this
provision would apply only if an institution chose to use the
alternative approach to calculating the NPV of its loans (using 50
percent of loans made as the NPV), the commenters argued that holding
the loans for at least two years is contrary to both statutory intent
and institutional mission. The commenters reasoned that in response to
the loss of availability of private student loans, the NPV approach
provided by the HEOA is intended to give an immediate benefit to an
institution that had to fill a funding gap itself by making loans to
its students. To the second point, the commenters stated that the
primary mission of an institution is to provide education and training,
not to become a lender or remain in the lending business.
Other commenters agreed with the rationale for the two-year ban on
selling loans, but argued that the two-year period was too long and
would unfairly impact an institution that provided loan funds to
students who are not ``high risk'' and whose loans would perform within
commercially acceptable norms. To mitigate this impact, the commenters
recommended reducing the ban to one year.
One commenter questioned whether the proposed regulations ensure
that the calculation of the NPV for institutional loans takes into
account the possibility that institutions do not intend to collect the
loans they make to students. The commenter asserted that this practice
calls into question an institution's willingness or ability to
accurately report estimates of annual payments due, as well as annual
payments collected on these loans. The commenter also asked whether
institutional loans that default are properly accounted for 90/10
purposes and if the Department has the authority to require, or would
require, an institution to disclose information about its loan
defaults.
Discussion: As stated in the NPRM (74 FR 42391), we proposed the
alternative approach for calculating the NPV as an administrative
convenience for an institution that either prefers a simpler method to
determine the NPV or does not need the additional non-Federal revenues
that might be counted if the NPV formula is used. It is solely up to
the institution whether to use this alternative method or the actual
NPV calculation. Each approach has costs and benefits that must be
weighed by the institution. If the institution believes the alternative
approach is too restrictive or somehow not in keeping with its mission,
it should use the NPV calculation.
With regard to the comments about an institution's unwillingness to
collect the loans it makes, we note that the institution might benefit
initially from the NPV calculation, but because its collection rate
would decrease significantly if it continues this practice, the
institution would derive no benefit from future NPV calculations. We
also note that the two-year ban on selling institutional loans, which
applies to institutions that choose to use the alternate NPV approach,
is necessary to ensure that the Department and other oversight entities
have sufficient time to monitor whether the loans are subjected to
routine collection efforts.
Changes: None.
Revenue From Loan Funds (Sec. 668.28)
Comments: A few commenters noted that, although the proposed
regulations in Sec. 668.28(a)(6) provide that an institution may count
as non-Title IV, HEA revenue the amount of a loan disbursement for a
payment period that exceeds the amount a student would have received
before the enactment of ECALSA, the regulations did not address how an
institution should treat the excess loan funds when a student withdraws
during a payment period. The commenters suggested that the excess loan
funds should be returned in proportion to the overall loan disbursement
for the payment period. Another commenter requested that when a student
takes sequential courses within a non-term program, and is charged on a
course-by-course basis, the excess loan funds should be attributed
within a payment period on a course-by-course basis. In this case,
several courses make up the payment period.
Discussion: When some of a student's loan funds are classified as
funds in excess of loan limits existing prior to ECASLA, those excess
loan amounts are included as revenue from a source other than Title IV,
HEA program funds under Sec. 668.28(a)(6) if those excess amounts pay
for institutional charges remaining on the student's account after
Title IV, HEA funds are applied. The determination of which loan funds
are classified as ``post-ECASLA'' funds, i.e., are funds in excess of
loan limits existing prior to ECASLA, is generally made on a payment
period basis. That is, if a student's loan for the loan period contains
a post-ECASLA amount and the post-ECASLA amount is \1/3\ of the total
loan amount, then each payment period's loan disbursement is generally
considered to consist of \1/3\ post-ECASLA loan funds and \2/3\ pre-
ECASLA loan funds. However, if a student takes sequential courses
within a non-term program where several courses make up a payment
period, and the student is charged on a course-by-course basis, then
the determination of which loan funds are classified as post-ECASLA
funds may be determined on a course-by-course basis. Under Sec.
668.28(a)(7)(iv), loan funds that are returned pursuant to Sec. 668.22
when a student withdraws from school are excluded from school revenues.
The Secretary intends that, when a school determines the amount of loan
funds that are excluded from revenues under
[[Page 55910]]
Sec. 668.28(a)(7)(iv), it considers the returned loan funds to be pre-
ECASLA loan amounts and post-ECASLA loan amounts based on the ratio
that existed for those categories of funds in the student's loan for
the loan period.
Changes: Section 668.28(a)(7)(iv) is amended to provide that, in
determining the amount of loan funds that are excluded from 90/10
revenues under Sec. 668.28(a)(7)(iv) when a student withdraws pursuant
to Sec. 668.22, and the institution returns loan funds from a loan
disbursement considered to consist of pre-ECASLA loan funds and loan
funds that were in excess of loan limits existing prior to ECASLA, the
funds that the institution returns are pre-ECASLA loan amounts and
post-ECASLA loan amounts based on the proportion of those loan amounts
that existed in the loan disbursement used in the Return calculation.
For example, a student's loan disbursement for a payment period is
$3,000, and $1,000 represents the funds in excess of loan limits
existing prior to ECASLA. The proportional breakdown of the funds
returned under the Return calculation is two-thirds pre-ECALSA loan
funds and one-third post-ECASLA loan funds.
Application of Funds (Sec. 668.28)
Comments: A few commenters noted that the proposed regulations did
not address how military education benefits are treated for 90/10
purposes. The commenters argued that because students have earned these
benefits through employment in difficult and often dangerous
conditions, and are free to use the benefits at an eligible
institution, the benefits should be treated for 90/10 purposes as
earned employment benefits. However, a student receiving these
benefits, which are essentially restricted to pay for tuition and fees,
may also be fully eligible for Title IV, HEA aid. Consequently, the
commenters asked the Department to revise the regulations to provide
that military education benefits overcome the presumption that Title
IV, HEA funds are used first to pay for tuition and fees.
Discussion: Section 487(d)(1)(C) of the HEA contains the list of
funds or sources of aid that overcome the presumption that Title IV,
HEA funds are used first to pay for tuition and fees. The Department
does not have the authority to expand that list.
Changes: None.
Notification to the Department (Sec. 668.28)
Comments: Several commenters objected to the proposal in Sec.
668.28(c)(3) that an institution must notify the Department that it
failed the 90/10 requirement no later than 45 days after the end of its
fiscal year. Some of the commenters stated that there was no reason to
shorten the current 90-day notification period. Other commenters argued
that because the penalty for failing 90/10 (especially for a second
consecutive year) is so severe, an institution should not be required
to report unaudited data. According to the commenters, this may result
because the small number of independent auditors who are experts in 90/
10 calculations may be unavailable to the large percentage of for-
profit institutions that have fiscal years ending December 31, because
this is time that the auditors would normally be busy doing audit and
tax work.
Discussion: We are not persuaded that an institution that knows it
is close to failing the 90/10 requirement could not plan for or take
the steps necessary to engage an audit firm in time to meet the 45-day
reporting deadline.
Changes: None.
Institutional Plans for Improving the Academic Program (Sec.
668.43(a))
Comments: A few commenters stated that the requirement in the
proposed regulations that an institution make readily available to
enrolled and prospective students any plans by the institution for
improving the academic program of the institution should include the
statement in the preamble of the NPRM that an institution is allowed to
determine what a ``plan'' is, including when a plan becomes a plan.
Discussion: We agree that including the concept that an institution
has the discretion to determine when a plan exists would clarify the
intent of the regulations.
Changes: Section 668.43(a)(5)(iv) is amended to clarify that an
institution must make readily available to students any plans by the
institution for improving the academic program of the institution, upon
a determination by the institution that such a plan exists.
Peer-to-Peer File Sharing and Copyrighted Material (Sec. Sec.
668.14(b)(30) and 668.43(a)(10))
Comments: A few commenters supported the proposed changes asserting
that they represented a fair interpretation of the intent of the
statute and would aid institutions in both interpreting and properly
following the new statute. One commenter asked whether the requirement
that an institution offer, to the extent practicable, legal
alternatives to illegal downloading or otherwise acquiring copyrighted
material could be satisfied by the institution simply not blocking
legal alternatives. One commenter expressed concern that the
requirement that, as a part of an institution's plans for combating the
unauthorized distribution of copyrighted material, the institution must
include the use of one or more technology-based deterrents as well as
procedures for periodically reviewing the effectiveness of the plans
would be unduly financially and administratively burdensome for
institutions.
Discussion: We do not believe that simply not blocking legal
alternatives for downloading or otherwise acquiring copyrighted
material qualifies as ``offering'' legal alternatives. The requirements
of Sec. 668.14(b)(30)(ii)(A) and (B), that an institution must
periodically review the legal alternatives and make available the
results of the review to its students through a Web site or other
means, support the notion that an institution's actions in this area
must be active, rather than passive. We note, however, that an
institution must offer such legal alternatives ``to the extent
practicable.'' Thus, how or whether the institution offers such
alternatives is controlled by the extent to which it is practicable for
the institution to do so. As stated in the preamble to the NPRM (74 FR
42393), the Department anticipates that individual institutions,
national associations, and commercial entities will develop and
maintain up-to-date lists of legal alternatives to illegal downloading
that may be referenced for compliance with this provision.
The requirement that, as a part of an institution's plans for
combating the unauthorized distribution of copyrighted material, the
institution must include the use of one or more technology-based
deterrents is statutory (see section 485(a)(1)(P) of the HEA) and we do
not have the authority to remove this requirement. Moreover, we believe
that the requirement that an institution's plans include procedures for
periodically reviewing the effectiveness of the institution's plans for
combating the unauthorized distribution of copyrighted material is
essential for institutions to comply with the requirements in section
485(a)(1)(P) and 487(a)(29) of the HEA.
Changes: None.
Consumer Information (Sec. Sec. 668.41 and 668.45)
Comment: One commenter suggested that we remove the definition of
``Retention rate'' from the regulations in Sec. 668.41. The commenter
stated that it is unnecessary because the regulations already instruct
institutions to disclose
[[Page 55911]]
retention rates as they are reported to the Integrated Postsecondary
Education Data System (IPEDS) and IPEDS provides the definition on its
Web site for institutions when they report that information. Of greater
importance is the fact that, if the National Center for Education
Statistics decides to modify the definition in the future, it would be
better for them not to be constrained by having the current definition
codified in the regulations.
Discussion: We agree.
Changes: We have removed the definition of ``Retention rate'' from
the regulations.
Comments: Although some commenters agreed with some or all of the
proposed regulations addressing consumer information disclosures, a
number of them objected to the proposed provision in Sec.
668.41(d)(5)(iii) that would require an institution to disclose any
placement rates it calculates, noting that, regarding placement, the
statute only requires disclosure of information, not an actual rate.
The statute addresses the requirement to report information about the
``placement in employment of, and types of employment obtained by,
graduates of the institution's degree or certificate programs.''
Because the statute specifically uses the term ``rates'' when it
addresses graduation, completion, and retention, but not when it
addresses placement, the commenters stated that the reporting of a
``rate'' for placement information exceeds the scope of the statute.
For similar reasons, some of the commenters objected to the
requirement to report the methodology that the institution uses in
determining placement information, because a methodology would appear
to be applicable only to an officially calculated rate. Further, some
commenters noted that, although institutions may calculate various
placement rates for their own purposes, those rates are not necessarily
intended to be disclosed to the public. One commenter added that
requiring institutions to report placement rate data that they
voluntarily produce for their own purposes (such as for internal
assessment of their programs) would be a disincentive to the
institution to engage in that activity.
This commenter did, however, support the concept of requiring an
institution to make available to students any placement data that are
used in advertising, marketing, or recruitment. Noting that some rates
might be calculated on individual programs or other subcategories of
the institution, several commenters suggested that the requirement to
report placement rates that the institution voluntarily calculates
should only be applicable to institution-wide placement rates. One
commenter noted that reporting placement rates for individual programs
is not required by the statute, cannot reasonably be implemented, and
is unnecessary. The commenter specifically noted that current
regulations addressing an institution's requirement to have a program
participation agreement require an institution that advertises job
placement rates as a means of attracting students to provide
information about its employment and graduation statistics.
A number of commenters stated that the reporting of actual
placement rates would be excessively burdensome for institutions and
that the burden would outweigh the value of this reporting. A couple of
commenters expressed concern that the regulations would force colleges
to obtain information from graduates that the graduates are not
obligated to provide, resulting in biased responses that would
``taint'' the information made available to students. On the other
hand, a couple of other commenters stated that ``when an institution
has calculated placement rates, suggesting that it wants to know
whether, when, and where its graduates are employed, then it is
reasonable to think that the subject is of interest and value to
students and prospective students as well, and should be shared with
them.'' Finally, although these same two commenters supported removing
the words ``upon request'' from the several places in the regulations
where institutions are required to make certain information available
to students and prospective students, another commenter stated that the
Department should not delete those words when describing the
institution's responsibility to make job placement information
available to its consumers. The commenters who supported removing those
words stated that removing them would make it clearer that the consumer
information in question must be easily available. However, the
commenter who opposed removing those words stated that, because the
words were in the HEA, the Department did not have the authority to
exclude them from the regulatory language implementing that part of the
HEA.
Discussion: The Department believes that, in addressing information
dissemination activities, congressional intent was that students and
prospective students be provided pertinent information related to an
institution's completion, graduation, transfer-out, and placement
record. Only when sufficient information is available in these areas
can students and prospective students make informed choices about the
institution. The statute allows institutions to use placement
information that the institution obtains from sources such as alumni
and student satisfaction surveys, and it does not mandate that
institutions calculate an actual rate for this purpose. However, when
an institution has voluntarily calculated a placement rate, regardless
of whether it is an institution-wide placement rate or a placement rate
of only one or more programs or other subcategories of the institution,
and regardless of whether the institution advertises its job placement
rates, we believe that it is consistent with congressional intent to
have the institution disclose this information to its consumers. Thus,
although the regulations do not mandate that the institution calculate
a placement rate, when the institution has voluntarily chosen to do so,
the regulations require it to provide that information to its students
and prospective students. To help ensure that the information is as
meaningful as possible, the regulations require that the institution
disclose not only the source of the information provided, but the time
frames and methodology associated with the calculation or production of
the information.
Finally, regarding the exclusion of ``upon request'' when
describing the institution's responsibility to make job placement
information available to its students and prospective students, the
Department notes that institutions typically compile and make the
information available on their Web sites, but possibly in paper form as
well. Consequently, we view the inclusion of the phrase ``upon
request'' to mean that this information is readily available to
students who wish to see it. As a matter of course, students coming to
an institution's Web site to learn about the institution should be able
to find this information, and students inquiring directly may be
referred to the Web site or provided with the information on paper.
Changes: None.
Comment: With regard to the disaggregation of completion or
graduation rates by receipt or non receipt of certain types of aid, one
commenter expressed concern that the wording in Sec. 668.45(a)(6)(ii),
which states that ``students shall be considered to have received the
aid in question only if they received such aid in the period specified
in paragraph (a)(3) of this section,'' would exclude students
[[Page 55912]]
who received aid for the first term (the period in question), but who
had the receipt of that aid delayed beyond the period in question due
to an unanticipated deferral of payment, such as for verification. The
commenter stated that receipt of aid in this circumstance would have
the same effect on access and enrollment as if the aid were paid in the
first term. The commenter expressed hope that the Department's intent
was not to have the students listed as not receiving the aid in
question.
Discussion: We agree that students who receive aid in a second term
that was intended for the first term should be listed in the same
category as students who actually received their aid in the first term.
Changes: We have changed the word ``in'' to ``for'' in Sec.
668.45(a)(6)(ii).
Comment: Several commenters expressed concern that recordkeeping
and reporting requirements in Sec. 668.45 could serve as a
disincentive to institutions to offer a comprehensive transition and
postsecondary education program (as addressed in subpart O of the
regulations, Financial Assistance for Students with Intellectual
Disabilities). The commenters questioned whether these students would
negatively affect an institution's completion or graduation rate
because students with intellectual disabilities do not typically
matriculate and graduate with a regular diploma.
Discussion: Section 668.45 requires an institution to prepare a
completion or graduation rate (and sometimes a transfer out rate) for
its certificate- or degree-seeking, first-time, full-time undergraduate
students. If an institution has a comprehensive transition and
postsecondary education program, some of its students with intellectual
disabilities who are enrolled in that program may factor into the
institution's completion and graduation rate. It is unlikely that they
would be part of an institution's transfer out rate. A comprehensive
transition and postsecondary education program may be a degree or
certificate program, or it may be a non-degree or non-certificate
program. Certificate or degree-seeking, first-time, full-time
undergraduate students with intellectual disabilities who are enrolled
in a comprehensive transition and postsecondary education program will
be part of an institution's completion and graduation rate
calculations. As with other students, if they complete or graduate from
their degree or certificate program within the time frames listed in
Sec. 668.45(b), they will be listed. The Department does not believe
that first-time, full-time, undergraduate students with intellectual
disabilities who are enrolled in a comprehensive transition and
postsecondary education program designed to lead to a degree or
certificate will necessarily have completion or graduation rates
significantly different from first-time, full-time, undergraduate
students without intellectual disabilities. Students with intellectual
disabilities who are enrolled in a comprehensive transition and
postsecondary education program that does not lead to a degree or
certificate will not be a factor in an institution's graduation and
completion rate.
Changes: None.
Comments: Two commenters noted that removing the reference to
paragraph (d) in Sec. 668.48(b) leaves out the exclusion of students
who have left school to serve in the Armed Forces, to serve on official
church missions, or to serve with a foreign aid service of the Federal
Government from the completion or graduation, or transfer-out rate
information required by Sec. 668.48.
Discussion: The commenters are correct. The proposal to remove the
reference to paragraph (d) and replace it with paragraph (e) was a
mistake.
Changes: None.
Campus Safety Provisions
Reporting and Disclosure of Information (Sec. 668.41(a))
Comment: One commenter requested clarification of what would be
considered an ``on-campus student housing facility.'' Specifically, the
commenter questioned how this definition should be applied in cases in
which there are public-private partnerships or third parties who may
own or control property on areas contiguous to the campus or on
university-owned property.
Discussion: The Department recognizes that there are a myriad of
possible arrangements that an institution may have for housing
facilities for students. Regarding whether a particular student housing
facility is an ``on-campus'' facility, we refer to the current
definition of the term ``campus'' in Sec. 668.46(a). To clarify, any
student housing facility that is owned or controlled by the
institution, or is located on property that is owned or controlled by
the institution, and is within the reasonably contiguous geographic
area that makes up the campus is considered an on-campus student
housing facility.
Changes: None.
Missing Student Notification Procedures (Sec. 668.46(h))
Comment: A number of commenters requested clarification of how the
proposed requirement in Sec. 668.46(h) relates to requirements under
the Family Educational Rights and Privacy Act (FERPA). Under this
section, institutions must provide students living in an on-campus
student housing facility an option to register a confidential contact
person to be notified in the case that the student is determined
missing.
Discussion: Although missing student contact information would be
considered part of a student's education records under FERPA, section
485(j) of the HEA, as amended by section 488(g) of the HEOA, requires
that students be provided the option to register ``confidential''
contact information. This indicates that a student's contact
information should receive greater privacy protections than FERPA
provides. Under section 485(j) of the HEA, only authorized campus
officials and law enforcement officers in furtherance of a missing
person investigation may have access to this confidential contact
information. We view a student's identification of a contact person
pursuant to section 485(j) of the HEA and Sec. 668.46(h) as providing
permission for law enforcement personnel to contact the identified
individual under the circumstances identified in these statutory and
regulatory provisions.
Changes: None.
Comment: Some commenters expressed concern that the proposed
notification procedures in Sec. 668.46(h)(2) may lead to unnecessary
alarm on the part of parents, guardians, and emergency contact persons,
as well as a needless burden on campus and local law enforcement
agencies. Specifically, they requested clarification that the
notification procedures would only take effect if, after a brief
investigation, the missing student report is found to be valid. In
addition, several commenters requested clarification about the 24 hour
time period requirements associated with the notification procedures,
suggesting that an institution's policy statement must explicitly state
that the institution must make the notification within 24 hours after
an official determination has been made that the student has been
missing for 24 hours.
Discussion: The proposed regulations in Sec. 668.46(h)(2) specify
that an institution's notification procedures must go into effect
within 24 hours after a student has been officially determined to have
been missing for 24 hours by the
[[Page 55913]]
campus security department or local law enforcement agency, as
applicable. This does not preclude an institution from either making a
determination that a student is missing before the student has been
missing for a full 24 hours or initiating notification procedures as
soon as it determines that the student is missing. A brief
investigation as suggested by the commenter would presumably be
included in this official determination, e.g., authorities could check
sources such as Facebook in trying to determine whether the student is
missing. We agree, nevertheless, that the regulations could be clearer
in delineating the 24 hour time periods.
Changes: Section 668.46(h) is revised to clarify the time frame
within which notification must occur.
Comment: A commenter stated that the regulations in Sec. 668.46
were unclear and suggested a new structure.
Discussion: We reviewed the commenter's suggested language, but we
continue to believe the current structure is sufficiently clear. This
language reflects the tentative agreement reached by the Team V
committee during negotiated rulemaking, and the Department wishes to
preserve this agreement.
Changes: None.
Annual Fire Safety Report--Definitions of Terms (Sec. 668.49(a))
Comment: One commenter suggested that the definition of value of
property damage should be revised to include only the damage to
property, furnishings, and equipment that is owned, leased, or
otherwise controlled by the institution. The commenter argued that it
could be burdensome for institutions to determine the value of property
and contents that are owned by third parties and that this information
could be deemed private by the other party. In addition, the commenter
suggested that institutions should have the option to provide
explanatory text and clarifying information for estimates of property
damage. The concern was that a high dollar value may create false
concern as to the safety on campus, when in reality, a high value could
be from damage to a single piece of expensive equipment.
Discussion: The definition of the value of property damage applies
to an on-campus student housing facility and includes the value of
property and the contents within. The Department recognizes that many
of the contents on a property may be owned by third parties. However,
because the statute requires that information be provided about damage
caused by fires in on-campus student housing facilities, this estimate
should include the value of property that is not owned or controlled by
the institution. Although an institution may not be able to determine
the exact value of the contents, it must give the most accurate
estimate possible in order to be in compliance with the regulation.
With regard to explanatory text, institutions have the flexibility to
include additional information in the annual fire safety report. In
reporting statistics to the Department, the Web-based collection tool
will include space for institutions to include explanatory text for
each item that will be viewable on the public Web site.
Changes: None.
Comment: One commenter stated that the definition of fire in Sec.
668.49(a) was ambiguous and needed to be clarified. Specifically, the
commenter suggested that phrases such as ``open flame or other burning
in a place not intended to contain the burning or in an uncontrolled
manner'' and ``place'' could be interpreted differently by institutions
and, therefore, could undermine the consistency of the definition of
``fire'' for statistical and comparative purposes. Further, the
commenter suggested an alternate definition drawn from insurance law
that would include the concept of a ``hostile fire,'' or one that
includes any combustion that cannot be controlled, escapes from where
it was initially set and confined, and that was not intended to exist.
The commenter also questioned the feasibility of gathering statistics
on each instance of a fire that does not result in injury, death, or
property damage, suggesting that reports of insignificant fires will
obscure attention to serious fire problems or trends.
Discussion: Section 485(i)(1)(A) of the HEA requires that
institutions collect and report statistics on the number of fires in
each on-campus student housing facility, and section 485(i)(3) of the
HEA further requires that institutions maintain a log of all fires that
occur in any on-campus student housing facility. The Department and
non-Federal negotiators worked diligently to define the term fire,
understanding that it is difficult to devise a definition that will
cover all of the fires that we intend to be included yet still exclude
the ones that we do not. The negotiators reached a tentative agreement
on the definition of fire, and the Department wishes to preserve this
language. We continue to believe that the definition set forth in the
proposed regulations can reasonably be interpreted and applied by
institutions.
In addition, under the HEA all fires will be included in the
institution's statistics and in the fire log. Therefore, the definition
of fire arguably may not be limited to only fires that result in
injury, death, or property damage. Further, as stated in the preamble
to the NPRM, an institution's policies regarding fire safety do not
affect the classification of whether a fire meets the definition of
fire. As an example, one commenter suggested that a candle wick might
be a ``place'' that is intended to contain burning, but that student
residence hall policies might prohibit candles, rendering the candle
wick no longer a ``place'' intended to contain a flame because the
candle should not be there at all. However, a candle wick is still a
place intended to contain burning, regardless of whether candles are
prohibited under an institution's policies. The Department anticipates
including additional examples in a revised version of the Handbook for
Campus Crime Reporting to provide guidance to institutions in complying
with these regulations.
Changes: None.
Annual Fire Safety Report--Statistics (Sec. 668.49(b) and (c))
Comment: One commenter suggested that an institution should not be
responsible for tracking an individual with a fire-related injury who
has separated from the university for the purpose of potentially
including that individual in the institution's statistics on fire-
related deaths. If that individual dies within one year of sustaining
injuries as a result of a fire, then the institution may not know
whether that individual died as a result of those injuries.
Discussion: The regulations do not require an institution to track
an individual that separates from, and is no longer in contact with,
the institution. However, the institution is expected to make a
reasonable effort to ascertain whether an individual's death is
considered a fire-related death, as defined in Sec. 668.49(a). For
example, if an individual with fire-related injuries is hospitalized a
few miles from the institution, the institution may reasonably be
expected to track this person for potential inclusion in the
institution's statistics. By contrast, if an individual separates from
the institution and travels to another country, the institution may not
be expected to track them for inclusion in the institution's
statistics.
Changes: None.
Annual Fire Safety Report--Description of Policies (Sec. 668.49(b))
Comment: One commenter suggested that we revise the language
related to the reporting of fire statistics under
[[Page 55914]]
proposed Sec. 668.49 to specify that these statistics include fires
that are reported to a ``campus fire authority.''
Discussion: Institutions are expected to collect information about,
and report on, all fires regardless of whether they were reported to a
campus fire authority. Fires may be reported to a variety of
authorities at an institution other than a campus fire authority (e.g.,
to a residence life officer). The intent of the regulations is to
include these fires in an institution's statistics and fire log.
Changes: None.
Comment: Two commenters suggested that the Department require that
institutions have fire doors and other doors in the path of exit from a
fire inspected at least annually and disclose in their annual fire
safety report how often the doors are inspected. The commenters noted
that proper maintenance and inspection of every fire safety system
element is critical to ensure that these elements can function in the
case of a fire.
Discussion: We define a fire safety system in Sec. 668.49(a) as
``any mechanism or system related to the detection of a fire, the
warning resulting from a fire, or the control of a fire,'' listing
elements including, among others, sprinkler systems, fire detection
devices, stand-alone smoke alarms, and fire doors and walls as examples
of what might be included in a fire safety system. The commenter
correctly states that maintenance and inspection of a fire safety
system can help ensure that the elements are properly functioning.
Institutions are required to describe the fire safety system in each
on-campus student housing facility, and an institution may provide
information about how often the elements of each fire safety system are
inspected or maintained in this description. The Department expects
that an institution will adequately maintain the elements of its fire
safety systems. However, we do not intend to specify a maintenance or
inspection schedule for each of these elements.
Changes: None.
Annual Fire Safety Report--General (Sec. 668.49)
Comment: One commenter suggested a number of minor changes to a
variety of provisions, including:
Replacing the phrase ``may include'' in the definition of
a fire-related injury in Sec. 668.49(a) with the word ``includes'';
Replacing the words ``faculty, staff'' in the definition
of a fire-related injury in Sec. 668.49(a) and in the requirement that
an institution include policies regarding fire safety education and
training programs in its annual fire safety report in Sec.
668.49(b)(6) with the word ``employees'';
Replacing the words ``resulting from'' in the definition
of a fire-safety system in Sec. 668.49(a) with ``of'';
Replacing the phrase ``smoke, water, and overhaul'' in the
definition of value of property damage in Sec. 668.49(a) with ``smoke
and water''; and
Revising the Sec. 668.49(c)(1)(ii) to read ``The number
of persons who received fire-related injuries that resulted in
treatment at a medical facility, including at an on-campus health
center.''
Discussion: We agree to make some of these changes. In particular,
we agree with the commenter that institutions should include the number
of persons who received fire-related injuries, as opposed to the actual
number of injuries, as a single person may have more than one injury.
We also agree that the term ``employees'' is more precise than the
words ``faculty, staff'' and have revised the regulations accordingly.
Changes: We have revised the language in Sec. 668.49(c)(1)(ii) to
clarify that the number of injuries refers to the number of people with
fire-related injuries. We have also replaced the words ``faculty,
staff'' with the word ``employees'' in both Sec. 668.49(a) and Sec.
668.49(b)(6).
Comment: One commenter suggested that we revise Sec. 668.43 to
include two additional disclosures specified in the HEOA that require
institutions to disclose their policies on vaccination, and information
on diversity of the student body.
Discussion: The Department is not addressing all of the self-
implementing provisions of the HEOA in these regulations. We intend to
publish separate regulations covering these new disclosures.
Changes: None.
Subpart O--Financial Assistance for Students With Intellectual
Disabilities
Scope and Purpose (Sec. 668.230)
Comment: One commenter expressed concern that the limit on the
amount of time for which a student can receive a Pell Grant would
adversely affect the completion time of a student with an intellectual
disability because the student may need to spend additional time in
remedial or developmental classes. The commenter suggested that the
Department waive the cap on the number of Federal Pell Grant awards a
student with an intellectual disability may receive.
Discussion: The Federal Pell Grant statutory cap is 18 semesters or
9 years. Because students with intellectual disabilities are not yet
enrolled in comprehensive transition and postsecondary programs
approved by the Department under these regulations, we do not have any
data that suggests that these students will need longer to complete
their comprehensive transition and postsecondary programs. For this
reason, we believe it is inappropriate to waive the Federal Pell Grant
cap for these students as part of these regulations.
Changes: None.
Comment: Two commenters requested that proposed Sec. 668.230 be
revised to require the Secretary to waive any rules necessary to ensure
that students enrolled in eligible comprehensive transition and
postsecondary programs remain eligible for Federal Pell, FSEOG, and FWS
program funds.
Discussion: Section 484(s)(3) of the HEA authorizes the Secretary
to waive any statutory provision applicable to the Federal Pell Grant,
FSEOG, and FWS programs--other than the need analysis provisions in
part F of the HEA--as well as any institutional eligibility provisions
that the Secretary determines necessary to ensure that programs
enrolling students with intellectual disabilities otherwise determined
to be eligible may receive financial assistance. While this section of
the HEA authorizes the Secretary to grant the waivers of the sort
described by the commenters, it does not require the Secretary to do
so. The Secretary generally does not regulate the Department's own
procedures.
Changes: None.
Definitions (Sec. 668.231)
Comment: A few commenters expressed concern that the proposed
regulations do not sufficiently convey the importance of employment as
a desired outcome for students with intellectual disabilities who
enroll in eligible comprehensive transition and postsecondary programs.
Discussion: We agree with the commenters that gainful employment is
an important outcome for students with intellectual disabilities
participating in comprehensive transition and postsecondary programs.
In fact, the Department has a long history of providing national
leadership for, and administration of, programs that develop and
implement comprehensive and coordinated programs of vocational
rehabilitation, supported employment and independent living for
individuals with disabilities, through services, training and economic
opportunities, in order to maximize their employability, independence
and integration into the workplace and the community.
[[Page 55915]]
We believe that the regulations sufficiently ensure that the
comprehensive transition and postsecondary programs approved by the
Department will focus on ensuring that enrolled students will be
prepared for gainful employment. Specifically, in the definition of the
term comprehensive transition and postsecondary program in Sec.
668.231, paragraph (a)(3) provides that the program is one that is
designed to support students with intellectual disabilities who are
seeking to continue academic, career and technical, and independent
living instruction at an institution of higher education in order to
prepare for gainful employment. Under Sec. 668.232(a), an institution
applying to offer a comprehensive transition and postsecondary program
as an eligible program under title IV of the HEA must provide to the
Secretary a detailed description of that program, including a
description that addresses all of the components of the program, as
defined in Sec. 668.231. Because Sec. 668.231(a)(3) specifically
references that a comprehensive transition and postsecondary program is
one that is designed to prepare enrolled students for gainful
employment, the detailed description required under Sec. 668.232(a)
must include a description of how the program meets this definitional
requirement. We, therefore, believe that the regulations sufficiently
ensure that any comprehensive transition and postsecondary program will
focus on the outcome of gainful employment for students participating
in these programs.
Changes: None.
Comment: Two commenters requested clarification of how half-time
participation for students with intellectual disabilities should be
determined, specifically, whether ``half-time'' is based on real time
or credit hours, and whether it is calculated per semester or across
the length of the program. In a related issue, commenters also
suggested that the proposed regulations place too much emphasis on the
academic portions of the program, arguing that the half-time
integration criterion should not be linked exclusively to coursework
and internships but should be expanded to include outside activities.
Discussion: Section 668.231(a)(5) specifies that a comprehensive
transition and postsecondary program is a program that requires
students with intellectual disabilities to have at least one-half of
their participation in the program, as determined by the institution,
focus on academic components through one or more of a variety of
activities that integrate students with intellectual disabilities into
academic contexts with students without disabilities. Institutions have
a fair degree of flexibility in determining the meaning of ``half-time
participation'' in designing a comprehensive transition and
postsecondary program: It may be reasonably based on real hours, credit
hours, or a combination of the two, and it may be calculated across the
span of the program or by term, as long as an institution clearly
explains in its application to add an eligible program how this will be
determined.
With regard to the comments stating that the proposed regulations
place too much emphasis on the academic portions of the program, we
disagree. Section 668.231(a)(5) only requires that the program require
enrolled students to have at least one half of their participation in
the program focus on academic components. We fully expect that the
remaining portion of the program will consist of other activities that
include having enrolled students with intellectual disabilities
participate with students without disabilities in such non-academic
settings as clubs, organizations, service projects, or other university
or community life activities.
Changes: None.
Comment: A few commenters expressed concern that the proposed
definition of a student with an intellectual disability in Sec.
668.231(b) does not exist in the Individuals with Disabilities
Education Act (IDEA). Specifically, several commenters asked which
students would be considered students with intellectual disabilities
under the HEA.
Discussion: Under Sec. 668.231(b), a student with an intellectual
disability is defined as a student with mental retardation or a
cognitive impairment characterized by significant limitations in
intellectual and cognitive functioning and adaptive behavior, as
expressed in conceptual, social, and practical adaptive skills, and who
is currently, or was formerly eligible for special education or related
services under the IDEA. The Department recognizes that disabilities
other than mental retardation, such as certain forms of autism and
traumatic brain injury, may be considered intellectual disabilities.
Under Sec. 668.233(c), a student with an intellectual disability is
eligible to receive Federal Pell, FSEOG, and FWS program assistance
under subpart O of part 668 (Financial Assistance for Students with
Intellectual Disabilities) if the institution that offers the eligible
comprehensive transition and postsecondary program obtains a record
from a local educational agency (LEA) that the student is or was
eligible for special education and related services under the IDEA.
This section clarifies that if that record does not specifically
identify the student as having an intellectual disability, the
institution must review all documentation obtained, such as a
documented comprehensive and individualized psycho-educational
evaluation and diagnosis of an intellectual disability by a
psychologist or other qualified professional; or a record of the
disability from an LEA or State educational agency (SEA), or government
agency, such as the Social Security Administration or a vocational
rehabilitation agency, that identifies the intellectual disability.
Ultimately, the institution determines whether a student meets the
definition of a student with an intellectual disability for the
purposes of this subpart.
Changes: None.
Comment: Many commenters disagreed with the requirement that a
student with an intellectual disability must have gone through the
formal IDEA eligibility process to be eligible for Title IV, HEA
program assistance. They argued that the Conference report indicates
that Congress intended to include students who were home-schooled or
went to a private school in the definition of a student with an
intellectual disability. The commenters further suggested that if the
Department maintains its position that only students who have gone
through the formal IDEA eligibility process are eligible for Title IV,
HEA program assistance, then the Department should issue guidance and
alerts to States, LEAs, students, parents, parent training centers, and
advocacy organizations, reminding them that the IDEA's Child Find and
Free Appropriate Public Education (FAPE) in the Least Restrictive
Environment requirements apply to all individuals who are still at an
age at which they could receive special education services in their
State.
Discussion: As discussed in the preamble to the NPRM, we interpret
the statute as providing that a student who has not gone through the
formal IDEA eligibility process does not meet the definition of a
student with an intellectual disability. Specifically, section 760(2)
states that a student with an intellectual disability means a student
who ``is currently, or was formerly, eligible for a FAPE under the
IDEA.'' While the Department does not wish to exclude students who have
not gone through this process, we do not believe the statutory language
permits the Department to make these students eligible. We encourage
students to obtain an IDEA eligibility determination
[[Page 55916]]
while they are still age-eligible for IDEA services. The Department
will continue to remind States and LEAs of their responsibilities under
the IDEA, including under the child find provision in section
612(a)(3), that they locate, identify, and evaluate all children with
disabilities residing in the State, including those who are in private
schools or are home-schooled.
Changes: None.
Program Eligibility (Sec. 668.232)
Comment: One commenter suggested that, rather than requiring an
institution to apply to have a comprehensive transition and
postsecondary program for students with intellectual disabilities
approved by the Department for Title IV, HEA funding, the Department
simply require the institution to provide assurances that it offers a
program that meets the criteria of a comprehensive transition and
postsecondary program for students with intellectual disabilities. The
commenter argued that this would provide a more streamlined application
process. The commenter also noted that the HEOA authorizes a new model
demonstration program and a coordinating center that will enable the
Department to gather information on best practices and to work to
develop model accreditation standards for these programs.
Discussion: The process for adding a comprehensive transition and
postsecondary program to the list of eligible programs at an
institution should not pose a large burden on institutions, because it
will be part of the same process an institution now uses to notify the
Department of any new program it seeks to include as an eligible Title
IV, HEA program. As far as the model demonstration program and
coordination center, the Department has a current National Institute of
Disability and Rehabilitation Research center evaluating promising
practices in this area.
Changes: None.
Comment: One commenter requested that the Department clarify
whether only currently existing comprehensive transition and
postsecondary programs can be eligible for Department approval under
Sec. 668.232. The commenter asked if any comprehensive transition and
postsecondary program offered by an institution is an eligible
comprehensive transition and postsecondary program.
Discussion: An institution may submit to the Secretary for approval
under Sec. 668.232 a comprehensive transition and postsecondary
program that it currently offers or a program that it is ready to
implement. The Secretary will consider for approval any comprehensive
transition and postsecondary program that meets the definitional
requirements in Sec. 668.231(a) for which an institution submits an
application in accordance with Sec. 668.232. There are currently no
comprehensive transition and postsecondary programs approved by the
Department.
Changes: None.
Comment: Commenters suggested that we add a new provision in Sec.
668.232 to require an institution to include in its application for
approval of a comprehensive transition and postsecondary program, a
description of how students with intellectual disabilities are socially
and academically integrated into the campus community to the maximum
extent possible.
Discussion: We do not believe that the suggested language is
necessary. Section 668.232(a) requires that institutions provide a
detailed description of the comprehensive transition and postsecondary
program that addresses all of the components of the program, as defined
in Sec. 668.231, in their application for approval by the Department.
One of those elements, in Sec. 668.231(a)(6), specifies that a
comprehensive transition and postsecondary program must provide
students with intellectual disabilities opportunities to participate in
coursework and other activities with students without disabilities. To
comply with these regulations, an institution applying to add an
eligible comprehensive transition and postsecondary program must
address this element by explaining how its program will ensure that
students with intellectual disabilities are integrated socially and
academically with students without disabilities.
Changes: None.
Comment: One commenter asserted that the concept of a program is
different in special education than it is in higher education in that,
in the special education context, a program is typically an
individualized set of services and supports designed for a single
student. This commenter stated that a set of services and supports
designed for a single individual student to participate in regular
college courses, internships, and the like should constitute a
comprehensive transition and postsecondary program. The commenter
questioned whether the Department would approve such a comprehensive
transition and postsecondary program for a single student, and, if so,
whether it would be necessary for each individualized set of services
and supports to be approved by the Department as a separate program.
The commenter believed that, as long as a basic structure of support is
in place for these programs, the services may be individualized to meet
the needs of a single student or a group of students and that the
institution should only be required to apply once for the ``basic''
program structure, and then be able to offer individual variations of
the program as needed to individuals without having to reapply for
program eligibility for each version of the program.
Discussion: In general, an institution must demonstrate in its
application that its comprehensive transition and postsecondary program
satisfies the definitional criteria in Sec. 668.231(a). An institution
may have one, or more than one, comprehensive transition and
postsecondary program. A program may be for only one student or for a
group of students, but each program must be approved by the Department.
To be clear, the Department will not approve a generalized structure
that can later be modified by the institution to be a different program
for specific students. That said, once a program is approved, it can be
modified slightly for different students. For example, a program
approved under Sec. 668.231 may require a specific number and type of
courses, along with other program requirements, but that does not mean
that each student in that program will take exactly the same courses.
Much like the variation in any student's curriculum that results from
individual choices in elective coursework and required academic areas
within a program, individual students enrolled in an approved
comprehensive transition and postsecondary program may end up taking
some different courses. All such courses must be part of the same
approved program or part of a separately approved program.
Changes: None.
Comment: One commenter suggested that if a student with an
intellectual disability is dually enrolled in an LEA and in a
comprehensive transition and postsecondary program, then the State
Accrediting Agency, SEA, and other stakeholders should have input into
the accrediting process of the comprehensive transition and
postsecondary program.
Discussion: The Department is not requiring programmatic
accreditation as a condition for approving a comprehensive transition
and postsecondary program. Under Sec. 668.232(e), the institution is
required to inform its institutional accrediting agency of its
comprehensive transition and postsecondary program if the
[[Page 55917]]
institution applies to have that program approved by the Department as
an eligible program for Title IV, HEA program purposes. The accrediting
agency determines what it does with that information.
Changes: None.
Comment: One commenter asked how accreditation status was
determined when an institution and a non-profit agency share
responsibility for providing and operating a comprehensive transition
and postsecondary program through a formal memorandum of agreement. The
commenter suggested that the accreditation status of the non-profit
agency should be considered in the accreditation of the program.
Further, under a situation such as this, the commenter requested
clarification as to whether Title IV, HEA program assistance could be
applied toward the costs for services and fees provided by both the
institution and the non-profit agency.
Discussion: Only an institution participating in the Title IV, HEA
programs may offer an eligible comprehensive transition and
postsecondary program, as that term is defined in Sec. 668.231(a). For
this reason, the Department will take into account only the
institution's accreditation status in approving a comprehensive
transition and postsecondary program. The accreditation of the non-
profit agency would not have an impact on the eligibility of the
program. Under Sec. 668.5, an eligible institution may contract out a
portion of the eligible program through a written arrangement with
another eligible institution, an ineligible institution, or an
ineligible organization to provide the educational program. Section
668.5(c)(3) of the regulations specifies that--
(1) The ineligible institution or organization may not provide more
than 25 percent of the educational program; or
(2) The ineligible institution or organization may provide more
than 25 percent but not more than 50 percent of the educational
program, as long as--
(a) The eligible institution and ineligible institution or
organization are not owned, or controlled by the same individual,
partnership, or corporation; and
(b) The eligible institution's accrediting agency, or if the
institution is a public postsecondary vocational educational
institution, the State agency listed in the Federal Register in
accordance with 34 CFR part 603, has specifically determined that the
institution's arrangement meets the agency's standards for the
contracting out of educational services.
In terms of funding, the amount of Title IV, HEA program assistance
that a student may receive for enrollment in a comprehensive transition
and postsecondary program is based on the student's need, which is
defined in section 471 of the HEA as the cost of attendance minus the
student's expected family contribution minus any estimated financial
assistance received by the student. Need-based aid that a student
receives may be used toward any costs in the student's cost of
attendance, including those incurred through parts of the program that
have been contracted out to a non-profit agency or other institution or
organization through a written arrangement with the eligible
institution that offers the program.
Changes: None.
Student Eligibility (Sec. 668.233)
Comment: One commenter questioned whether a student with an
intellectual disability would be disqualified from receiving Title IV,
HEA program assistance if he or she has a legal guardian.
Discussion: Having a legal guardian would not preclude a student
with an intellectual disability from receiving Federal student aid
funds. It may, however, affect the student's dependency status, which
is taken into account in determining a student's financial need.
Therefore, having a legal guardian may affect the amount of financial
aid funds for which the student may be eligible.
Changes: None.
Comment: Several commenters asked for clarification on whether a
high school student who receives special education and related services
can also be enrolled in a comprehensive transition and postsecondary
program.
Discussion: It is the Department's longstanding position that a
student with a disability may be dually enrolled in secondary school
and a postsecondary institution, although such dual enrollment
precludes the student from being eligible for Title IV, HEA aid.
The provisions in section 612(a)(2) of the IDEA and 34 CFR 300.110
require States to ensure that public agencies take steps to ensure that
children with disabilities have access to the same program options that
are available to nondisabled children in the area served by the agency.
This would apply to dual enrollment programs in postsecondary or
community-based settings. However, we do not believe that the IDEA, or
its implementing regulations, requires public agencies to provide dual
enrollment programs in postsecondary or community-based settings for
students with disabilities, if such programs are not available to
secondary school students without disabilities. In a State that offers
dual enrollment programs to secondary school students, a high school
student with an intellectual disability, as defined under Sec.
668.231(b), who is receiving special education and related services may
be dually enrolled in an eligible comprehensive transition and
postsecondary program under Sec. 668.232.
Changes: None.
Comment: Several commenters expressed concern regarding the
provision of special education and related services to a student with
an intellectual disability who is dually enrolled in secondary school
and a comprehensive transition and postsecondary program. The
commenters asked whether the LEA would pay for the comprehensive
transition and postsecondary program or whether the student with an
intellectual disability would apply for Federal Pell, FSEOG and FWS
program assistance.
Discussion: Under section 612(a)(1) of the IDEA and 34 CFR 300.101,
each State and its LEAs must make FAPE available to all children with
specified disabilities residing in the State, in mandatory age ranges.
Under 34 CFR 300.17(c) of the regulations implementing Part B of the
IDEA, FAPE includes an appropriate preschool, elementary school, or
secondary school education in the State involved. Under the IDEA, LEAs
are not required to provide FAPE in postsecondary education settings.
In general, Part B, IDEA funds could be used for appropriate education
services included in an IEP that are provided outside of a public or
private elementary or secondary school though, if, under State law, the
education would be considered secondary school education.
A student with an intellectual disability is eligible to receive
Federal Pell Grant, FSEOG, and FWS program assistance under Sec.
668.233 if the student satisfies the general student eligibility
requirements under Sec. 668.32, except for paragraphs (a), (e), and
(f) of that section. Section 668.32(b) states that a student is not
eligible to receive Federal Pell Grant, FSEOG, or FWS program
assistance if he or she is enrolled in elementary or secondary school.
In other words, if a student is dually enrolled in a secondary school
and an eligible comprehensive transition and postsecondary program, he
or she is not eligible for Federal Pell, FSEOG, and FWS program
assistance. Therefore,
[[Page 55918]]
while an LEA could use Part B, IDEA funds to support a dually enrolled
student with a disability's participation in a comprehensive transition
and postsecondary program if the services the student received in that
program were considered secondary school education under State law and
were included in the student's IEP, the student would not be eligible
to apply for Federal Pell Grant, FSEOG, and FWS program assistance. The
Department will monitor the establishment of these comprehensive
transition and postsecondary programs, and may consider at some point
in the future using the Secretary's waiver authority under the statute
to permit qualifying students who are dually enrolled in these programs
to also receive Federal Pell Grant, FSEOG, and FWS program assistance.
If the Department were to adopt such an approach, we would provide
additional information concerning the procedures and availability of
any such waivers at that time.
Changes: None.
Comment: A few commenters requested that the regulations clarify
whether the LEA is responsible for monitoring the progress of a student
who is dually enrolled in a secondary school and a comprehensive
transition and postsecondary program.
Discussion: If a student with an intellectual disability who is
dually enrolled in a comprehensive transition and postsecondary program
receives services in that program that are considered secondary
education in the State and are included in the student's IEP, the SEA
or LEA must monitor the student's progress toward annual academic and
functional goals, because those entities are responsible, under the
IDEA, for ensuring that the services identified in the student's IEP
are provided. Additionally, eligible comprehensive transition and
postsecondary programs, which operate through institutions, must meet
the program requirements in Sec. 668.232, including establishing a
policy for determining whether a student enrolled in the comprehensive
transition and postsecondary program is making satisfactory academic
progress. In all cases, the Department encourages the SEA or LEA and
the institution offering the comprehensive transition and postsecondary
program to enter into a formal agreement of understanding that
identifies what the SEA or LEA will provide to the dually-enrolled
student, and what the institution will provide to meet the requirements
of an eligible comprehensive transition and postsecondary program, and
how the student's progress will be assessed. Furthermore, section
612(a)(12) of the IDEA and its implementing regulations at 34 CFR
300.154 require States to develop and implement interagency agreements
or other written mechanisms for interagency coordination to ensure that
services necessary to provide FAPE to children with disabilities within
the State that are provided or paid for by other public agencies are
provided or paid for. These provisions mean that if public agencies of
a State operate comprehensive transition and postsecondary programs
that dually enroll students who are covered by the IDEA to provide
services included in the students' IEPs, the State must ensure that
interagency agreements or other written mechanisms meeting these
requirements are in place.
Changes: None.
Comment: A few commenters requested that the Department clarify the
interaction between the receipt of Title IV, HEA aid and other benefits
that the student may receive, such as Medicaid or vocational
rehabilitation funding. Specifically, commenters expressed concern that
a student's receipt of Medicaid benefits or other benefits may be
disrupted due to the student's receipt of Federal Pell Grant, FSEOG, or
FWS program assistance.
Discussion: These final regulations implement provisions of the HEA
only. They do not attempt to address any overlap between the
protections and requirements of the State Medicaid program under Title
XIX of the Social Security Act. Additional information concerning
eligibility requirements for other programs may be sought from the
agency responsible for implementing those programs.
With respect to financial aid available to students under the HEA,
a student's financial aid assistance may be affected by aid received
under other programs, such as Medicaid. While a student's Federal Pell
Grant award would not be reduced based on any other aid received, the
amount of FSEOG and FWS program assistance for which a student is
eligible is based, in part, on the student's total estimated financial
assistance (EFA), as defined in Sec. 673.5(c). A student's FSEOG and
FWS awards, when combined with the student's other EFA, may not exceed
the student's financial need. Therefore, a student's FSEOG and FWS
awards may be affected by other aid the student receives.
Changes: None.
Comment: Several commenters expressed concern regarding the use of
a student's summary of academic and functional performance to meet the
requirements under Sec. 668.233(c). Commenters stated that a student's
summary of academic and functional performance should not serve as
acceptable documentation to establish that the student has an
intellectual disability.
Discussion: To better prepare for the student's enrollment in a
comprehensive transition and postsecondary program, the Department
encourages institutions to consider using a student's summary of
academic achievement and functional performance (SOP) as described in
34 CFR 300.305(e)(3). That said, the Department recommends that
institutions use the SOP only as supplemental information under Sec.
668.233(c).
Section 300.305(e)(3) of the implementing regulations of the IDEA,
consistent with section 614(c)(5)(B)(ii) of the IDEA, states that the
summary required when a child graduates with a regular diploma or
exceeds the age eligibility under State law must include information
about the child's academic achievement and functional performance, as
well as recommendations on how to assist the child in meeting the
child's postsecondary goals. The Department believes that this
supplemental information would provide the institution with a better
understanding of a student's abilities and limitations in determining
an appropriate comprehensive transition and postsecondary program for
the student.
Changes: None.
Comment: A few commenters expressed concern that a student's
documentation from an SEA under Sec. 668.233(c) might not include
terms such as ``intellectual disability'' or ``mental retardation''
and, therefore, may not be useful in establishing eligibility as
student with an intellectual disability. One commenter stated that, in
its school district, a student's IEP does not include a disability
category. The commenter asked how a student's eligibility in this
situation would be determined and whether the school district would
have to complete an evaluation that states that the student has an
intellectual disability. Another commenter asked if a student would
need to have a specific diagnosis of intellectual disability to be
eligible.
Discussion: The issue raised by these comments is similar to the
one addressed in response to comments on Sec. 668.231(b). Section
668.233(c) requires that an institution obtain a record from an LEA
that the student is or was eligible for special education and related
services under the IDEA, and if
[[Page 55919]]
the record does not identify the student as having an intellectual
disability, documentation establishing that the student has an
intellectual disability. The Department recognizes that documentation
from an LEA (an IEP or transition plan, for example) may not state that
a student has an intellectual disability. The Department believes that
Sec. 668.233(c)(1) and (c)(2) addresses this issue, by requiring the
institution to review all documentation obtained to establish that the
student has an intellectual disability. Nothing in these provisions,
however, requires LEAs to perform or pay for evaluations that they do
not need for purposes of meeting requirements of the IDEA.
Changes: None.
Comment: A few commenters suggested that, whenever possible,
existing documentation from school records or other sources, such as
previous evaluations conducted by qualified professionals from public
agencies, be used to determine that the student has an intellectual
disability, and that the process for making this determination should
be minimally burdensome for students, families, and institutions.
Discussion: During negotiated rulemaking, some negotiators
expressed concern that institutions would require updated evaluations
that could be costly or cost prohibitive. In the preamble to the NPRM,
the Department stated that an institution, as the party responsible for
determining students' eligibility for the Federal Pell, FSEOG, and FWS
programs, would be allowed to accept the most recent documentation,
even if it is more than a few years old. To further clarify, we do not
believe it is appropriate to require in these regulations that the
documentation submitted by the student have a minimum or maximum age,
as long as the information used is the best available under the
circumstances. Under Sec. 668.233(c), if the record from the LEA does
not state that the student has an intellectual disability, the
institution also would have to obtain documentation to establish that
the student has an intellectual disability, as defined under Sec.
668.231(b).
Changes: None.
Part 690 Federal Pell Grant Program
Two Federal Pell Grants in an Award Year (Sec. Sec. 690.67, 690.64,
and 690.63(h))
Student Eligibility for a Second Scheduled Award (Sec. 690.67)
Comments: Several commenters agreed with the proposed regulations
that would amend Sec. 690.67(a)(1) to provide that a student would be
eligible for a second Scheduled Award if the student has earned in an
award year at a minimum the credit or clock hours of the first academic
year of the student's eligible program. However, a significant number
of commenters objected to the proposed regulations as they would apply
to term-based programs. In general, the commenters were concerned that
the regulations would unduly limit the benefits to students of two
Federal Pell Grants in an award year, would be overly complex and
burdensome for institutions to administer, and would create confusion
for students due to uncertainty in determining the students' Federal
Pell Grants and due to the different eligibility requirements for a
second Scheduled Award. The commenters also believed that enabling an
individual student to enroll in additional coursework during an award
year should be considered acceleration without reference to the
program's length. Some commenters proposed that eligibility for
payments be determined based on previous eligibility used and without
reference to completion of the credit hours of an academic year. Some
commenters proposed, as an alternative, for the Department to require
that a student successfully complete the hours for which the Federal
Pell Grant was paid to qualify for the second Scheduled Award.
One commenter was concerned that the requirements would adversely
affect students taking noncredit and reduced credit remedial
coursework.
Several commenters questioned the Department's concern that the
satisfactory academic progress standards in 34 CFR 668.16(e), as well
as the new limitation under section 401(c)(5) of the HEA that a
student's lifetime eligibility is limited to nine Scheduled Awards if a
student receives a Federal Pell Grant for the first time on or after
July 1, 2008, did not provide sufficient minimum standards for ensuring
a student's advancement in his or her eligible program. Two commenters
recommended revising the satisfactory academic progress requirements as
an alternative to the proposed regulations.
Discussion: We agree that the proposed regulations might unduly
limit a Federal Pell Grant-eligible student's ability to meet the costs
of attending additional courses that would enable the student in an
award year to accelerate his or her progress toward program completion
and that the final regulations should not impede such acceleration. In
addition, we agree that the proposed regulations could be considered
complex and burdensome for some institutions to administer. We agree,
in principle, with the recommendations of some commenters that payment
should be tied to successful completion of the credit or clock hours
for which a student has received Federal Pell Grant payments. Based on
these comments, we believe it would be appropriate to require that, for
a student to be eligible for payments from a second Scheduled Award in
an award year, the student must be enrolled in credit or clock hours
that were attributable to the student's second academic year. A student
in a term-based program would cease to be eligible for a payment from
the second Scheduled Award if the student ceased to be enrolled in the
credit hours attributable to the second Scheduled Award prior to the
date for any recalculation for changes in enrollment status required by
the institution's recalculation policies established under Sec.
690.80(b).
The eligibility requirements for a second Scheduled Award in an
award year must be different from those for a first award, in that
section 401(b)(5)(A)(i) of the HEA requires enrollment on at least a
half-time basis to receive a second Scheduled Award. This difference
may be disconcerting to some students. However, we believe that
students will be able to understand these requirements.
We do not believe the regulations would adversely affect a student
enrolled in noncredit or reduced-credit remedial coursework. The
student's remedial coursework would be considered in accordance with
the requirements for determining equivalence to full-credit coursework
under 34 CFR 668.20 when determining the student's eligibility for a
second Scheduled Award in an award year.
We do not agree with the commenters concerning the efficacy of the
current satisfactory academic progress standards and the new lifetime
limit of nine Scheduled Awards in providing a sufficient basis for
encouraging a student to accelerate program completion. Some
institutions have adopted reasonable standards of satisfactory academic
progress that would address our concerns. Others have used the
flexibilities and options in the current regulations to fashion
institutional standards that may meet the letter of the requirements in
34 CFR 668.16(e) but in our view allow students who are not progressing
satisfactorily to continue to receive title IV aid. Because of this
variability and our belief that the new lifetime limit for Federal Pell
Grants does not provide sufficient encouragement to accelerate program
completion, we do not agree with the
[[Page 55920]]
suggestions that a payment of a second Scheduled Award may be made
without reference to a student's completion of the first academic year
in an award year. Further, we believe that relying on current
satisfactory progress standards would not be in accord with the student
achievement and accountability principles for using additional funds
appropriated for Federal Pell Grants under the American Recovery and
Reinvestment Act of 2009 (Pub. L. 111-5). We agree with the commenters
who recommended that we consider revising the satisfactory academic
progress standards and have included this issue as a likely topic in
the negotiated rulemaking on program integrity issues that is scheduled
to commence on November 2, 2009. Information on this new negotiated
rulemaking was published in the Federal Register on May 26, 2009 (74 FR
24728) and September 9, 2009 (74 FR 46399), respectively.
Changes: We are revising Sec. 690.67(a)(1) to provide that an
institution participating in the Federal Pell Grant Program shall award
a payment of a second Scheduled Award to a student in an award year if
an otherwise eligible student is enrolled for credit or clock hours
that are attributable to the student's second academic year in the
award year. As a result of this change, we are also making conforming
changes in Sec. 690.67(c) for special circumstances in determining
whether a student may qualify for a second Scheduled Award and in Sec.
690.64 as discussed under the heading ``Payment Period in Two Award
Years (Sec. 690.64).''
Transfer Students (Sec. 690.67(b))
Comments: One commenter supported Sec. 690.67(b) as a
straightforward treatment of transfer students. Another believed no
provision was needed for transfer students if the Secretary ceased to
require that eligibility for payment from a second Scheduled Award be
based on completing the hours of the first academic year. One commenter
cited examples where the provisions in Sec. 690.67(b) would result in
inequitable treatment between continuously enrolled and transfer
students. Another commenter believed that we should provide an ``hours-
earned'' method as an option under which an institution with the
necessary information may determine the credits or clock hours earned
in the award year at other institutions that would be applicable to
completing the first academic year. The commenter believed that there
should also be a limitation on the need to recalculate a student's
eligibility based on the receipt of information subsequent to
disbursements of a second Scheduled Award. Some commenters believed
that the determination of a transfer student's credit or clock hours
should be based on the percentage of the student's Scheduled Award used
at the prior institution.
Discussion: Based on the Department's revision of Sec.
690.67(a)(1), determining a transfer student's credit or clock hours
toward completion of the first academic year in an award year is still
required. During negotiated rulemaking, the non-Federal negotiators
noted that determination of the actual credits or clock hours earned at
other institutions would be burdensome to the institution into which a
student transfers and generally would be administratively difficult. To
perform a determination of the actual credit or clock hours earned at
other institutions, an institution would need to have the necessary
information to determine whether credit or clock hours were earned in
the current award year, regardless of whether the institution accepted
them on transfer. The institution would also be required to resolve
ambiguities such as whether the credit or clock hours of a summer
payment period were considered earned in the current award year or
whether credit or clock hours in a transcript were nonapplicable hours
based on Advanced Placement (AP) programs, International Baccalaureate
(IB) programs, testing out, life experience, or similar competency
measures.
While we recognized that there will be some inequities in applying
the assumption method in Sec. 690.67(b), we continue to believe that
this method is appropriate for evaluating a transfer student's
eligibility when the alternative would be administratively burdensome
to an institution. However, we also agree with the commenter who
recommended that, if an institution chooses to do so, it may use an
hours-earned method to determine the actual credit or clock hours
earned at other institutions during the award year.
Under Sec. 690.67(b)(2) an institution that chooses to use the
assumption method must determine the credit or clock hours that a
transfer student has earned at a prior institution during the award
year based on the Federal Pell Grant disbursements that the student
received at the prior institution during the award year in relation to
the student's Scheduled Award at that prior institution. These same
proportions are used to calculate the percentage of Scheduled Award
used by a student. Following the provisions of Sec. 690.67(b)(2) would
yield a more accurate determination of the credit or clock hours
considered to be transferred than merely applying the percentage of
Scheduled Award used.
We agree with the concern regarding the receipt of additional
information regarding a student's payments at other institutions
subsequent to determining the student's eligibility for a second
Scheduled Award and agree that some limitation on requiring a
recalculation of prior payments would be appropriate. An institution
may correctly make a determination of a student's eligibility for a
second Scheduled Award for a prior payment period based on the
information available at that time. We do not believe it is necessary
to impose the burden of requiring the institution to adjust a
determination for a prior payment period that was correctly made during
that prior payment period. However, we believe it is appropriate to
provide that the institution may, at its option, revise the student's
eligibility for a prior payment based the receipt of additional
information.
Changes: We are revising Sec. 690.67(b) to provide that an
institution may, on an individual student basis, use an hours-earned
method for determining a student's credit or clock hours earned at
other institutions in an award year as an alternative to the assumption
method. We are also clarifying that an institution may, but is not
required to, recalculate a student's payment in a prior payment period
in an award year if the institution receives information that would
change the student's eligibility for a second Scheduled Award in the
prior payment period. The institution would be required to take into
consideration the new information in determining eligibility for the
current payment period if that payment period is in the same award
year.
Nonapplicable Credit or Clock Hours (Sec. 690.67(d))
Comment: One commenter did not support excluding the AP, IB,
testing out, life experience, or similar competency measures in
determining a student's eligibility for a second Scheduled Award. The
commenter believed that the exclusion would be burdensome to
administer.
Discussion: We do not agree with the commenter. A student's
eligibility for a second Scheduled Award is based, in part, on the
student's progress in earning the credits or clock hours of the first
academic year in the award year. We continue to believe that this
provision ensures that only those credits or clock hours earned in the
award year are considered in determining the
[[Page 55921]]
student's eligibility. While the provision may create some burden, it
is essential to making a valid determination of a student's eligibility
for a second Scheduled Award.
Changes: None.
Payment Period in Two Award Years (Sec. 690.64)
Comments: Several commenters supported the concept of requiring
that a payment period scheduled to occur in two award years, a
``crossover'' payment period, be assigned to the award year in which
the student would receive the greater payment for the payment period. A
significant number of commenters believed these requirements would be
administratively difficult to administer. Several commenters believed
that the financial aid administrator should continue to have the
discretion to assign a ``crossover'' payment period to either award
year and should not be required to assign a crossover payment period to
the award year in which the student would receive the greater payment
for the payment period. The commenters also believed that a financial
aid administrator should not be required to reassign the crossover
payment period if subsequent information is received that would lead to
a higher Federal Pell Grant for a student as required in Sec. 690.64
in the case of students enrolled on at least a three-quarter-time
basis. One commenter believed that these requirements mandated that a
student must file a Free Application for Federal Student Aid (FAFSA)
for a crossover payment period. One commenter believed that a deadline
should be established for being required to make reassignments of
crossover payment periods.
Several commenters believed that the determination of the higher
payment should be made only at the time the Federal Pell Grant is
initially awarded or packaged. Some commenters were concerned that
increasing a crossover payment would necessitate cancelling all or a
portion of a student's loan. One commenter believed the increased
payments would lead to overpayments in Federal Work-Study (FWS)
assistance. The commenters believed these adjustments in the students'
awards would confuse students. Some commenters were concerned that
requiring that the crossover payment period be in the second award year
would adversely affect a student's eligibility for loans since the
institution would be required to place the crossover payment period in
the second award year for purposes of awarding FFEL and Direct Loans.
Two commenters stated that the award year placement of a student's
Federal Pell Grant may adversely affect the amount of the student's
State grant aid. Commenters were also concerned that institutions would
delay disbursement to students eligible for a higher payment from the
second award year until Federal funds were available on July 1 for that
year. One of these commenters noted that State law prohibited an
institution from advancing funds not yet received. The commenter
proposed that, if necessary due to State law, an institution should be
allowed to disburse funds at the beginning of a crossover payment
period from the first award year to a student eligible for a higher
payment form the second award year and then make the necessary
adjustments after July 1 to provide the higher payment from the second
award year. The commenter believed that this process would ensure funds
are available to the student at the start of the payment period but
ultimately yield the greater payment. One commenter questioned whether
the results of verifying application information could lead to a
reassignment of the payment period and adversely affect a student.
Several commenters recommended that if a payment must be assigned to
the subsequent award year, the Federal Pell Grant should be considered
disbursed for purposes of the return of title IV funds under 34 CFR
668.22 even when the student withdraws prior to July 1.
Discussion: We continue to believe that a crossover payment period
should be assigned in a way that maximizes a student's eligibility for
that payment period even if this causes some administrative
difficulties. The Department would consider an institution that delays
disbursing funds from the second award year until July 1 of that year,
to be in compliance with these requirements if the institution
disbursed funds at the beginning of the crossover payment period from
the first award year to a student eligible for a higher payment from
the second award year and then made the necessary adjustments after
July 1 to provide the higher payment from the second award year as soon
as funds were available on July 1. There is no requirement that a
student submit a FAFSA for both award years to receive payment for a
crossover payment period. We believe these benefits will be understood
and appreciated by students. Further, with the changes made by the
Department in these final regulations to Sec. 690.67(a)(1), assigning
a crossover payment period to the subsequent award year would generally
no longer adversely impact a student's ability to establish eligibility
for a second Scheduled Award in that subsequent year.
Contrary to the concerns expressed by some commenters, one of the
major additional benefits for students of this requirement in Sec.
690.64 is a reduction in student borrowing. The increase in the
student's Federal Pell Grant payment would increase the student's
estimated financial assistance and thus reduce the student's need for
loan funds for the payment period. Also, while it is unlikely that a
combination of an increased Federal Pell Grant payment and FWS would
result in a need to reduce the FWS award as one commenter indicated, no
overaward for earnings from work would be created in the very limited
cases in which a student may need to have FWS assistance canceled.
We do not agree with the commenters who were concerned that
requiring that the crossover payment period in the second award year
would adversely affect a student's eligibility for loans. The
commenters believed that the institution would be required to place the
crossover payment period in the new award year for purposes of awarding
FFEL and Direct Loans. Under the requirements of the Title IV, HEA
programs, the award year assignment of a student's Federal Pell Grant
has no affect on the award year assignment of the student's other
Federal student assistance, including loans. The amount of the Federal
Pell Grant is estimated financial assistance for determining the need
in the other programs. Institutions should ensure that their
information technology systems provide for this necessary flexibility
to ensure that students receive appropriate assistance in each award
year. System requirements should not be the basis for limiting the
assistance for which a student is eligible.
We agree with the commenters that, in some limited instances under
the current award regulations for State grant programs, a student's
State grant may be reduced because of an increase in the student's
Federal Pell Grant. We do not believe that we should use these limited
circumstances as the basis for denying a student a higher Federal Pell
Grant crossover payment. We believe that the States can make the
necessary adjustments to their programs to maximize the overall aid
available to these needy students.
We do not agree that a reassignment of the payment period as a
result of verification of application information would adversely
affect a student. If, as a result of verification of application
information, a student's EFC and Federal Pell Grant eligibility changes
for
[[Page 55922]]
an award year, that result would be taken into consideration in
assigning a student's crossover payment. If, for example, the crossover
payment period were assigned to the first award year because it yielded
the maximum Federal Pell Grant payment but verification of application
information resulted in a lower EFC and increased Federal Pell Grant
eligibility for the second award year, the crossover payment period
would be reassigned to the second award year.
With regard to the return of title IV funds, a disbursement for the
subsequent award year may be made prior to July 1 using institutional
funds rather than waiting to disburse when the subsequent award year
Federal funds become available on July 1. Also, notwithstanding whether
an institution chooses to make such a disbursement, the return of title
IV funds takes into consideration both funds that were disbursed as
well as funds that could have been disbursed.
Based on these comments, we will establish deadlines specifically
for these determinations through publication of a Federal Register
notice. We will clarify the deadline when the receipt of information
would require reassignment for a higher crossover payment and a
deadline for a subsequent period when the receipt of information would
support, but not require, an institution to make reassignments for a
higher crossover payment. We expect to set the initial deadline based
on the last date for submitting Student Aid Reports or Institutional
Student Information Records for the first award year or a similar date
as appropriate. During the subsequent period of time prior to the
second deadline, an institution may establish such policies concerning
reassignment of the crossover payment period as it determines best meet
the needs of its students and the institution.
Changes: We are revising proposed Sec. 690.64(b) to require that,
regardless of a student's enrollment status, the crossover payment
period must be assigned to the award year in which the student would
receive the greater payment for the payment period at the time the
student's Federal Pell Grant is initially calculated. We are also
clarifying the deadlines by which an institution must take into account
any information that changes a student's payment by providing that an
institution must make a reassignment to the award year providing the
greater payment based on any additional information received by a
deadline that the Secretary establishes through publication in the
Federal Register for each award year. We are further providing that an
institution may make, but is not required to make, a reassignment if
additional information is received after the date established for
required reassignments and not later than the deadline date for the
first award year for administrative relief based on unusual
circumstances that the Secretary establishes through publication in the
Federal Register for each award year.
We are also removing proposed Sec. 690.64(a)(2) and (c). Section
690.64(a)(2) provided that a student may request a determination
concerning the assignment of a crossover payment period, and Sec.
690.64(c) required the assignment of a payment period with more than
six months scheduled to occur within one award year to be assigned to
that award year. These proposed provisions are no longer relevant under
these revised requirements.
Part 692--Leveraging Educational Assistance Partnership Program Grants
for Access and Persistence Program (Subpart C of Part 692 Consisting of
Sec. Sec. 692.90 Through 692.130)
Recruiting Eligible Students (Sec. 692.101(b)(2))
Comment: One commenter was concerned that early information and
intervention, mentoring, or outreach programs (early intervention
programs) are integral to the GAP Program, and the commenter believed
that it would be difficult to identify students participating in early
intervention programs who would be eligible for a LEAP Grant under GAP.
The commenter believed that under current privacy laws identifying
students who have participated in an eligible early intervention
program and matching them with their FAFSA submissions and then with a
GAP-participating postsecondary institution would appear to be
impossible. The commenter questioned whether these requirements could
be redefined to indicate that if the State partners with itself or
another organization to provide early intervention programs at a
particular high school that anyone who graduates with that high school
cohort would be considered a ``participating student.'' The commenter
believed this definition would remove the requirement of having to have
personally identifiable information for each participant. The commenter
also noted that additional guidelines would be needed for home-schooled
students or those who participate in an early intervention program
through a non-school-based program.
Discussion: To the extent that the privacy provisions of FERPA (34
CFR part 99) apply to the particular circumstances of a State agency
and other GAP participants in the State, the Department will provide
technical assistance on any issues raised by the applicability of FERPA
on a case-by-case basis.
Changes: None.
Executive Order 12866
1. Regulatory Impact Analysis
Under Executive Order 12866, the Secretary must determine whether
the regulatory action is ``significant'' and therefore subject to the
requirements of the Executive Order and subject to review by the OMB.
Section 3(f) of Executive Order 12866 defines a ``significant
regulatory action'' as an action likely to result in a rule that may
(1) have an annual effect on the economy of $100 million or more, or
adversely affect a sector of the economy, productivity, competition,
jobs, the environment, public health or safety, or State, local or
tribal governments or communities in a material way (also referred to
as an ``economically significant'' rule); (2) create serious
inconsistency or otherwise interfere with an action taken or planned by
another agency; (3) materially alter the budgetary impacts of
entitlement grants, user fees, or loan programs or the rights and
obligations of recipients thereof; or (4) raise novel legal or policy
issues arising out of legal mandates, the President's priorities, or
the principles set forth in the Executive order.
Pursuant to the terms of the Executive order, it has been
determined this regulatory action will have an annual effect on the
economy of more than $100 million. Therefore, this action is
``economically significant'' and subject to OMB review under section
3(f)(1) of Executive Order 12866. Therefore, the Secretary has assessed
the potential costs and benefits of this regulatory action and has
determined that the benefits justify the costs.
Need for Federal Regulatory Action
As discussed in the NPRM, these regulations are needed to implement
provisions of the HEA, as amended by the HEOA, related to changes to
the Federal grant and work-study programs, campus safety, educational
programs for students with intellectual disabilities, peer-to-peer file
sharing and copyright infringement, teach-outs, readmission of
servicemembers, and non-title IV revenue.
[[Page 55923]]
Regulatory Alternatives Considered
Regulatory alternatives were considered as part of the rulemaking
process. These alternatives were reviewed in detail in the preamble to
the NPRM under both the Regulatory Impact Analysis and the Reasons
sections accompanying the discussion to each regulatory provision. To
the extent that they were addressed in response to comments received on
the NPRM, alternatives are also considered elsewhere in this preamble
to the final regulations under the Discussions sections related to each
provision. No comments were received related to the Regulatory Impact
Analysis discussion of these alternatives.
As discussed above in the Analysis of Comments and Changes section,
these final regulations reflect specific HEOA requirements, in many
cases using language drawn directly from the statute, and minor
revisions in response to public comments. In most cases, these
revisions were technical in nature and intended to address drafting
issues or to provide additional clarity. None of these changes result
in revisions to cost estimates prepared for and discussed in the
Regulatory Impact Analysis of the NPRM.
Benefits
As discussed in the NPRM, benefits provided in these regulations
include greater transparency about consumer information and campus
safety for prospective and current students at institutions
participating in the Federal student financial assistance programs,
copyright infringement policies, requirements for readmission of
servicemembers, explanation of extenuating circumstances under which
TEACH Grant service obligations may be excused, requirements for
programs serving students with intellectual disabilities, and
additional guidelines for Federal grant and work-study programs. It is
difficult to quantify benefits related to the new institutional
requirements, as there is little specific data available on consumers'
use of such information and the effect of the other provisions. In the
NPRM, the Department requested comments or data that would support a
more rigorous analysis of the impact of these provisions. No comments
or additional data were received.
Benefits under these regulations flow directly from statutory
changes included in the HEOA; they are not materially affected by
discretionary choices exercised by the Department in developing these
regulations, or by changes made in response to comments on the NPRM. As
noted in the Regulatory Impact Analysis in the NPRM, these provisions
result in net costs to the government $1,644 million over years 2010-
2014.
Costs
As discussed extensively in the Regulatory Impact Analysis of the
NPRM, many of the statutory provisions implemented though these
regulations will require regulated entities to develop new disclosures
and other materials, as well as accompanying dissemination processes.
In total, these changes are estimated to increase burden on entities or
individuals participating in the Federal student assistance programs by
253,718 hours. Virtually all this increased burden is associated with
institutions, with 80 percent related to two provisions: peer-to-peer
file sharing and the award of two Pell Grants in a single award year.
An extremely small amount--384 hours--is associated with students. The
monetized cost of this additional burden, using loaded wage data
developed by the Bureau of Labor Statistics, is $4.7 million.
Given the limited availability of data underlying these burden
estimates, in the NPRM the Department requested comments and supporting
information for use in developing more robust estimates. In particular,
we asked institutions to provide detailed data on actual staffing and
system costs associated with implementing these regulations, especially
the provisions related to peer-to-peer file sharing and administering
two Pell Grants in one year. No comments or additional data were
provided.
Net Budget Impacts
HEOA provisions implemented by these regulations are estimated to
have a net budget impact of $297.4 million in 2010 and $1.6 billion
over FY 2011-2014. Consistent with the requirements of the Credit
Reform Act of 1990, budget cost estimates for the student loan programs
reflect the estimated net present value of all future non-
administrative Federal costs associated with a cohort of loans. A
cohort reflects all loans originated in a given fiscal year.
The budgetary impact of the regulations is entirely driven by
statutory changes involving the provision of two Pell Grants in a
single award year. The Department estimates almost no budgetary impact
for other provisions included in these regulations. There is no data
indicating that the extensive new requirements for disclosures for
student loan program participants will have any impact on the volume or
composition of Federal student loans.
Assumptions, Limitations, and Data Sources
As noted in the NPRM, because these regulations largely restate
statutory requirements that would be self-implementing in the absence
of regulatory action, impact estimates provided in the preceding
section reflect a pre-statutory baseline in which the HEOA changes
implemented in these regulations do not exist. Costs have been
quantified for five years. In developing these estimates, a wide range
of data sources were used, including data from the National Student
Loan Data System; operational and financial data from Department of
Education systems, including especially the Fiscal Operations Report
and Application to Participate (FISAP); and data from a range of
surveys conducted by the National Center for Education Statistics such
as the 2004 National Postsecondary Student Aid Survey, the 1994
National Education Longitudinal Study, and the 1996 Beginning
Postsecondary Student Survey. Data from other sources, such as the U.S.
Census Bureau, were also used. Elsewhere in this SUPPLEMENTARY
INFORMATION section we identify and explain burdens specifically
associated with information collection requirements. See the heading
Paperwork Reduction Act of 1995.
Accounting Statement
As required by OMB Circular A-4 (available at http://www.Whitehouse.gov/omb/Circulars/a004/a-4.pdf), in Table 2 below, we
have prepared an accounting statement showing the classification of the
expenditures associated with the provisions of these regulations. This
table provides our best estimate of the changes in Federal student aid
payments as a result of these regulations. The estimate for the period
from 2010 to 2014 uses OMB discounting methodology and discount rates
of seven and three percent. Expenditures are classified as transfers
from the Federal government to student loan borrowers (for expanded
loan discharges and teacher loan forgiveness payments).
[[Page 55924]]
Table 2--Accounting Statement: Classification of Estimated Expenditures
[In millions]
------------------------------------------------------------------------
Category Transfers
------------------------------------------------------------------------
Annualized Monetized Transfers......... $281 (7% discount rate).
$277 (3% discount rate).
From Whom to Whom?..................... Federal Government to Student
Loan Borrowers.
------------------------------------------------------------------------
Regulatory Flexibility Act Certification
The Secretary certifies that these regulations will not have a
significant economic impact on a substantial number of small entities.
These regulations affect institutions of higher education, lenders, and
guaranty agencies that participate in Title IV, HEA programs and
individual students and loan borrowers. The U.S. Small Business
Administration Size Standards define institutions and lenders as
``small entities'' if they are for-profit or nonprofit institutions
with total annual revenue below $5,000,000 or if they are institutions
controlled by small governmental jurisdictions, which are comprised of
cities, counties, towns, townships, villages, school districts, or
special districts, with a population of less than 50,000.
As discussed in more detail in the Regulatory Flexibility Act
section of the NPRM, data from the Integrated Postsecondary Education
Data System (IPEDS) indicate that roughly 2,660 institutions
participating in the Federal student assistance programs meet the
definition of ``small entities.'' More than half of these institutions
are short-term, for-profit schools focusing on vocational training.
Other affected small institutions include small community colleges and
tribally controlled schools. The Department estimates that total burden
on small institutions from these regulations will be thirty-nine hours
or less. Burden on institutions associated with these regulations is
largely associated with the requirements to establish systems to limit
illegal peer-to-peer file sharing, readmission requirements for
servicemembers, and new disclosures related to graduation rates,
retention rates, fire safety, and campus safety. In each of these
cases, the Department believes the new provisions do not represent a
significant burden on a large number of schools. Provisions related to
peer-to-peer file sharing, for example, only affect schools that
provide students with school-maintained and operated internet services;
many small institutions lack the resources or need to provide such
services and so will not be affected by the provisions. For those that
will be affected, the Department is encouraging the adoption of best
practices which should reduce institutional burden.
Data from the National Center for Education Statistics indicate
that roughly two percent of students at small institutions receive
veteran's benefits; this figure significantly overstates the number of
servicemembers likely to be readmitted under the regulations, but even
using the two percent figure as a proxy for affected students, the
Department believes this limited population will not represent a
significant burden for small institutions. For the consumer information
requirements, vocational institutions, which make up more than half of
the schools meeting the definition of ``small entities,'' are already
required to collect and distribute much of the required data. Even for
schools that will face new requirements to collect and disseminate
information about campus activities, the Department estimates
additional burden at most institutions of three hours or less.
In the NPRM, the Secretary invited small institutions to submit
data supporting comments related to whether they believe the changes
would have a significant economic impact on them. No data was received.
In the absence of this data, and based on our internal analyses, the
Department believes the new requirements contained in these regulations
do not impose significant new costs on a substantial number of small
institutions.
Guaranty agencies are State and private nonprofit entities that act
as agents of the Federal government, and as such are not considered
``small entities'' under the Regulatory Flexibility Act. The impact of
the regulations on individuals is not subject to the Regulatory
Flexibility Act.
Paperwork Reduction Act of 1995
Final Sec. Sec. 668.14, 668.18, 668.23, 668.28, 668.41, 668.43,
668.45, 668.46, 668.49, 668.232, 668.233, 686.41, 686.42, 690.63,
690.64, 690.67, 692.21, and 692.100, 692.101, 692.111 contain
information collection requirements. Under the Paperwork Reduction Act
of 1995 (44 U.S.C. 3507(d)), the Department of Education has submitted
a copy of these sections to the Office of Management and Budget (OMB)
for its review.
Section 600.5(a)(5)--Definition of Baccalaureate Liberal Arts Programs
Offered by Proprietary Institutions
The final change to Sec. 600.5(a)(5) adds to the definition of
proprietary institution of higher education an institution that
provides a program leading to a baccalaureate degree in liberal arts
that the institution has provided continuously since January 1, 2009,
so long as the institution has been accredited by a recognized regional
accreditation agency or organization since October 1, 2007, or earlier.
This change in the definition of a proprietary institution does not
impact burden.
While the current regulations point to OMB 1840-0098, we estimate
that there is no change in burden associated with this section of the
regulations as reported under the redesignated OMB Control Number 1845-
0012.
Section 668.14(b)(31)--Institutional Requirements for Teach-Outs/
Eligibility and Certification Procedures
The final regulations in Sec. 668.14(b)(31) require an institution
to submit a teach-out plan to its accrediting agency whenever (1) the
Department or their accrediting agency initiates an LS&T, or an
emergency action against the institution, as required by statute; (2)
the institution's State licensing or authorizing agency revokes the
institution's license or legal authorization to provide an educational
program; (3) the institution intends to close a location that provides
100 percent of at least one program; or (4) the institution otherwise
intends to cease operations.
While the current regulations in Sec. 668.14 point to OMB 1840-
0537, we estimate that the final changes in Sec. 668.14 will increase
burden by 160 hours for institutions under the redesignated OMB Control
Number 1845-0022.
Section 668.18--Readmission Requirements for Servicemembers
The final Sec. 668.18 of the regulations include the general
requirements that an institution may not deny readmission to a
servicemember, but must readmit the
[[Page 55925]]
servicemember with the same academic status as when the student was
last admitted to the institution. The final regulations clarify that
the requirements also apply to a student who was admitted to an
institution, but did not begin attendance because of service in the
uniformed services. The final regulations specify that the institution
must promptly readmit a student, and define ``promptly readmit'' as
readmitting a student into the next class or classes in the student's
program unless the student requests a later date of admission, or
unusual circumstances require the institution to admit the student at a
later date. The final regulations require the institution to make
reasonable efforts to help the student become prepared or to enable the
student to complete the program including, but not limited to,
providing refresher courses at no extra cost and allowing the student
to retake a pretest at no extra cost. The institution would not be
required to readmit the student if, after reasonable efforts by the
institution, the student is still not prepared to resume the program at
the point where he or she left off, or is still unable to complete the
program.
The final regulations require an institution to designate one or
more offices for the purpose of receiving advance notice from students
of their absence from the institution necessitated by service in the
uniformed services, and notice from students of intent to return to the
institution. However, such notices do not need to follow any particular
format, nor would a student have to indicate if the student intends to
return to the institution. Also, any such notice may be provided by an
appropriate officer of the U.S. Armed Forces. The notice of intent to
return may be provided orally or in writing and would not need to
follow any particular format. A period of absence from the institution
before or after performing service in the uniformed services do not
count against the period of uniformed service which is limited to the
five years.
The final regulations list the documentation that supports the
institution's determination for readmission that a student must submit
with an application for readmission. The final regulations make clear
that the types of documentation available or necessary will vary from
case to case.
The final regulations list the circumstances that a student's
eligibility for readmission to an institution would be terminated.
We estimate that the final changes will increase burden for
students by 384 hours and for institutions by 1,129 hours for a total
increase in burden of 1,513 hours in OMB Control Number 1845-NEW1.
Non-Title IV Revenue Requirement (90/10)
Section 668.28(a)--Calculating the Revenue Percentage
The final regulations in Sec. 668.28(a) implement the statutory
provisions relating to counting revenue from non-title IV eligible
programs.
Regarding institutional loans for which a net present value (NPV)
would be calculated, the final regulations establish that institutional
loans have to be credited in-full to the students' accounts, be
evidenced by standalone repayment agreements between students and the
institution, and be separate from enrollment contracts signed by
students.
To count revenue from loan funds in excess of the loan limits in
effect prior to ECASLA in the allowable revenue category, the final
regulations allow institutions to count the excess amount on a payment-
period basis.
We estimate that the final regulations will increase burden for
institutions; however, these final regulations only define non-title IV
revenue. The burden increase is found in Sec. 668.28(b) and (c) under
OMB 1845-NEW2.
Section 668.28(b)--Net Present Value
The final regulation in Sec. 668.28(b) defines the NPV as the sum
of the discounted cash flows. Appendix C illustrates how an institution
calculates its 90/10 revenue percentage.
The final regulations allow a simpler alternative to performing the
NPV calculation, by allowing an institution to use 50 percent of the
total amount of loans it made during the fiscal year as the NPV.
However, as a condition of using the 50 percent alternative
calculation, if the institution chooses to use this alternative, it may
not sell any of the associated loans until they have been in repayment
for at least two years.
We estimate that the final regulations will increase burden for
institutions by 3,087 hours in the new OMB Control Number 1845-NEW2.
Section 668.28(c)--Non-Title IV Revenue (90/10)
The final regulations in Sec. 668.28(c) removes all of the 90/10
provisions from 34 CFR 600.5 and relocates the amended provisions to
subpart B of part 668. The final regulations amend the program
participation agreement to specify that a proprietary institution must
derive at least 10 percent of its revenue from sources other than Title
IV, HEA program funds. If an institution does not satisfy the 90/10
requirement, the final regulations require the institution to notify
the Department no later than 45 days after the end of its fiscal year
that it failed to satisfy the 90/10 requirement. In keeping with
provisional certification requirements the current regulations are
amended by adding final language to provide that a proprietary
institution's certification automatically becomes provisional if it
fails the 90/10 requirement for any fiscal year.
We estimate that the final regulations in Sec. 668.28(c) will
increase burden for institutions by 1 hour in the new OMB Control
Number 1845-NEW2.
Section 668.23(d)(4)--Audited Financial Statements
The final regulations in Sec. 668.23(d)(4) require that a
proprietary institution must disclose in a footnote to its financial
statement audit the percentage of its revenues derived from the Title
IV, HEA program funds that the institution received during the fiscal
year covered by that audit. The institution must also report in the
footnote the non-Federal and Federal revenue by source that was
included in the 90/10 calculation.
While the current regulations point to OMB Control Number 1840-
0697, we estimate that the final regulations in Sec. 668.23(d)(4) will
increase burden for institutions by 165 hours for the redesignated OMB
Control Number 1845-0038.
Section 668.43(a)(5)(iv)--Institutional Plans for Improving the
Academic Program
The final regulations in Sec. 668.43(a) amend the information
about the academic program that the institution must make readily
available to enrolled and prospective students about any plans by the
institution for improving any academic program at the institution. An
institution is allowed to determine what a ``plan'' is, including when
a plan becomes a plan.
We estimate that the final regulations will increase burden for
institutions by 968 hours in OMB Control Number 1845-0022.
Sections 668.14(b) and 668.43(a)--Peer-to-Peer File Sharing/Copyrighted
Material
Section 668.14(b)(30)--Program Participation Agreement (PPA)
The final regulations require an institution, as a condition of
participation in a Title IV, HEA program, to agree that it has
developed and implemented plans to effectively combat the unauthorized
distribution of copyrighted material by users of the
[[Page 55926]]
institution's network without unduly interfering with the educational
and research use of the network.
An institution's plan must include:
The use of one or more technology-based deterrents;
Mechanisms for educating and informing its community about
appropriate versus inappropriate use of copyrighted material;
Procedures for handling unauthorized distribution of
copyrighted material, including disciplinary procedures; and
Procedures for periodically reviewing the effectiveness of
the plans.
The final regulations make clear that no particular technology
measures are favored or required for inclusion in an institution's
plans, and each institution retains the authority to determine what its
particular plans for compliance will be, including those that prohibit
content monitoring.
The final regulations require an institution, in consultation with
the chief technology officer or other designated officer of the
institution, to the extent practicable, offer legal alternatives to
illegal downloading or otherwise acquiring copyrighted material, as
determined by the institution. The final regulations also require that
institutions (1) periodically review the legal alternatives for
downloading or otherwise acquiring copyrighted material and (2) make
the results of the review available to their students through a Web
site and/or other means.
While the current regulations in Sec. 668.14 point to OMB 1840-
0537, we estimate that the final changes in Sec. 668.14(b)(30) will
increase burden by 91,120 hours for institutions under the redesignated
OMB Control Number 1845-0022.
Section 668.43(a)(10)--Consumer Information
The final regulations requires information regarding institutional
policies and sanctions related to the unauthorized distribution of
copyrighted material be included in the list of institutional
information provided upon request to prospective and enrolled students.
This information must (1) explicitly inform enrolled and prospective
students that unauthorized distribution of copyrighted material,
including peer-to-peer file sharing, may subject a student to civil and
criminal liabilities; (2) include a summary of the penalties for
violation of Federal copyright laws; and (3) delineate the
institution's policies with respect to unauthorized peer-to-peer file
sharing, including disciplinary actions that are taken against students
who engage in illegal downloading or unauthorized distribution of
copyrighted materials using the institution's information technology
system.
We estimate that the final regulations in Sec. 668.43(a)(10) will
increase burden for institutions by 1,424 hours in OMB Control Number
1845-0022.
Section 668.41--Reporting and Disclosure of Information
The final regulations in Sec. 668.41 add retention rate
information, placement rate information, and information on the types
of graduate and professional education in which graduates of the
institution's four-year degree programs enroll, to the types of
information that an institution must provide to its enrolled and
prospective students. When reporting its retention rate, an institution
must disclose the institution's retention rate as defined by and
reported to the Integrated Postsecondary Education Data System (IPEDS).
The institution may use various sources of retention rate information
and information on types of graduate and professional education in
which graduates of the institution's four-year degree programs enroll
(such as State data systems, surveys, or other relevant sources). If an
actual placement rate is calculated by the institution, it must be
disclosed. The institution would have to identify the source of the
information it discloses, as well as the time frames and methodology
associated with that information.
While the current regulations point to both OMB 1845-0004 and OMB
1845-0010, OMB 1845-0010 has been recently discontinued, therefore, we
estimate that the final regulations will increase burden for
institutions 8,541 hours in OMB Control Number 1845-0004.
Section 668.45--Information on Completion or Graduation Rates
Under the final regulations in Sec. 668.45, an institution's
completion and graduation rate information must be disaggregated by
gender, by each major racial and ethnic subgroup, and by whether or not
the institution's students received certain types of Federal student
aid. The disaggregation by receipt of aid is categorized by:
Recipients of a Federal Pell Grant;
Recipients of a Federal Family Education Loan or a Federal Direct
Loan (other than an Unsubsidized Stafford Loan); and
Recipients of neither a Federal Pell Grant nor a Federal Family
Education Loan or a Federal Direct Loan (other than an Unsubsidized
Stafford loan).
The institution reports its completion and graduation rate
information in a disaggregated fashion only if the number of students
in each category is sufficient to yield statistically reliable
information, and doing so would not reveal personally identifiable
information about an individual student.
We estimate that the final regulations will increase burden for
institutions 7,488 hours in OMB Control Number 1845-0004.
Campus Safety Provisions
Section 668.46(c)(3)--Hate Crime Reporting
The final regulations add the crimes of ``larceny-theft,'' ``simple
assault,'' ``intimidation,'' and ``destruction/damage/vandalism of
property'' to the crimes that must be reported in hate crime
statistics. Additionally, the final regulations update the definitions
of the terms ``Weapons: carrying, possessing, etc.,'' ``Drug abuse
violations,'' and ``Liquor law violations'' which are excerpted from
the Federal Bureau of Investigation's Uniform Crime Reporting Program,
to reflect changes made by the FBI to these definitions in 2004.
We estimate that the final regulations will increase burden for
institutions by 5,695 hours in OMB Control Number 1845-0022.
Reporting Emergency Response and Evacuation Procedures
Section 668.46(e)--Timely Warning and Emergency Notification
The final regulations clarify the difference between the existing
timely warning requirement and the new requirement for an emergency
notification policy. While a timely warning must be issued in response
to specific crimes, an emergency notification is required in the case
of an immediate threat to the health or safety of students or employees
occurring on campus. The final language clarifies that an institution
that follows its emergency notification procedures is not required to
issue a timely warning based on the same circumstances; however, the
institution must provide adequate follow-up information to the
community as needed.
We estimate that the final regulations will increase burden for
institutions by 1,424 hours in OMB Control Number 1845-0022.
Section 668.46(g)--Emergency Response and Evacuation Procedures
The final regulations outline the elements that an institution must
include in its statement of policy
[[Page 55927]]
describing its emergency response and evacuating procedures in its
annual security report to include the following:
Procedures to immediately notify the campus community upon the
confirmation of a significant emergency or dangerous situation
involving an immediate threat occurring on the campus.
A description of the process that (1) confirms that there is a
significant emergency or dangerous situation, (2) determines the
appropriate segment or segments of the campus community to receive a
notification, (3) determines the content of the notification, and (4)
initiates the notification system.
A statement that the institution will, without delay, and taking
into account the safety of the community, determine the content of the
notification and initiate the notification system, unless issuing the
notification will, in the professional judgment of responsible
authorities, compromise efforts to assist a victim or to contain,
respond to, or otherwise mitigate the emergency.
A list of the titles of the persons or organizations responsible
for carrying out the actions required.
Procedures for disseminating emergency information to the larger
community.
Procedures for testing its emergency response and evacuation
procedures on at least an annual basis with at least one test per
calendar year, and be documented, including a description of the
exercise, the date, time, and if it was announced or unannounced.
We estimate that the final regulations will increase burden for
institutions by 11,390 hours in OMB Control Number 1845-0022.
Missing Student Procedure
Section 668.41(a)--Definition of On-Campus Student Housing Facility
The final regulations in Sec. 668.41(a) would add a definition of
the term on-campus student housing facility to mean a dormitory or
other residential facility for students that is located on an
institution's campus.
The final definition is added to clarify what is meant by on-campus
student housing facility and to link the meaning of ``on-campus'' to
the current regulatory definition of campus in Sec. 668.46(a), which
is used for crime reporting under Sec. 668.46(c). The final change is
to a definition and does not impact burden.
While the current regulations point to both OMB 1845-0004 and OMB
1845-0010, OMB 1845-0010 has recently been discontinued. We estimate
that there is no change in burden associated with this section of the
regulations as reported under OMB Control Number 1845-0004.
Section 668.46(b)--Annual Security Report
The final regulations in Sec. 668.46(b) require an institution to
include its missing student notification policy and procedures in its
annual security report. This is required beginning with the annual
security report distributed by October 1, 2010.
We estimate that the final regulations will increase burden for
institutions by 456 hours for an increase in burden in OMB Control
Number 1845-0022.
Section 668.46(h)--Missing Student Notification Policy
The final regulations in Sec. 668.46(h) implement the new
statutory requirements, specifying that a statement of policy regarding
missing student notification for students residing in on-campus student
housing facilities must include:
A list of the titles of the persons or organizations to which
students, employees, or other individuals should report that a student
has been missing for 24 hours;
A requirement that any official missing student report be
immediately referred to the institution's police or campus security
department or, if not applicable, to the local law enforcement agency
with jurisdiction in the area;
The option for each student to identify a contact person to be
notified if the student is determined missing by the institutional
police or campus security department, or the local law enforcement
agency; and
A disclosure that contact information will be registered and
maintained confidentially.
The final regulations further require an institution to advise
students who are under 18 and not emancipated that if the student is
missing, it will notify a custodial parent or guardian in addition to
any contact person designated by the student. All students must also be
advised that, regardless of whether they name a contact person, the
institution must notify the local law enforcement agency that the
student is missing, unless the local law enforcement was the entity
that determined that the student is missing.
The final regulations reflect the new statutory requirements. These
regulations do not preclude the institution from contacting the
student's contact person or the parent immediately upon determination
that the student has been missing for 24 hours.
We estimate that the final regulations will increase burden for
institutions by 2,423 hours for an increase in burden in OMB Control
Number 1845-0022.
Fire Safety Standards
Section 668.41(e)--Annual Fire Safety Report
The final regulations provide that institutions that maintain an
on-campus student housing facility must distribute an annual fire
safety report and to create publication requirements for the annual
fire safety report that are similar to the long-standing rules for the
annual security report.
The final regulations allow an institution to publish the annual
security report and the annual fire safety report together, as long as
the title of the document clearly states that it contains both the
annual security report and the annual fire safety report. If an
institution chooses to publish the reports separately, it would have to
include information in each of the two reports about how to directly
access the other report.
While the current regulations point to both OMB 1845-0004 and OMB
1845-0010, OMB 1845-0010 has recently been discontinued. The burden
associated with the data collection and reporting for the annual fire
safety report is reflected in Sec. 668.49 as reported under OMB
Control Number 1845-NEW3.
Section 668.49--Annual Fire Safety Report
The final regulations define the following terms relevant to the
fire safety reporting requirements: Cause of fire; Fire; Fire drill;
Fire-related injury; Fire-related death; Fire-safety system; and Value
of property damage.
The final regulations require an institution to report to the
public, the statistics that it submits to the Department in its annual
fire safety report. The institution must provide data for the three
most recent calendar years for which data are available. The first full
report to contain the full three years of data would be the report due
on October 1, 2012.
The final regulations outline the elements that an institution must
disclose in its annual fire safety report, including: Fire statistics;
A description of each on-campus student housing facility fire safety
system; The number of regular, mandatory, supervised fire drills held
during the previous calendar year; Policies or rules on portable
electrical appliances, smoking, and open flames in student housing
facilities; Procedures for student
[[Page 55928]]
housing evacuation in the case of a fire; Policies on fire safety
education and training programs provided to students, faculty, and
staff; A list of the titles of each person or organization to which
students and employees should report that a fire has occurred; and
Plans for future improvements in fire safety.
The final regulations specify that an institution that maintains an
on-campus student housing facility must maintain a written and easily
understood fire log that records, by the date that the fire was
reported (as opposed to by the date that the fire occurred), any fire
that occurred in an on-campus student housing facility. The log would
have to include the nature, date, time, and general location of each
fire, and require that the log be available for the public. These final
regulations also implement the statutory requirement that an
institution make an annual report to the campus community on the fires
recorded in the fire log; however, this requirement may be satisfied by
the annual fire safety report described in final Sec. 668.49(b).
We estimate that the final regulations will increase burden for
institutions by 7,283 hours in OMB Control Number 1845-NEW3.
Financial Assistance for Students With Intellectual Disabilities
Section 600.5--Proprietary Institution of Higher Education
The final regulations in Sec. 600.5(a)(5)(i)(B)(2)(ii) define a
proprietary institution of higher education as one that may have a
comprehensive transition and postsecondary program as an eligible
program when it is approved by the Secretary. This change in the
definition of an eligible program does not impact burden.
While the current regulations in Sec. 600.5 point to OMB 1840 -
0098, this information collection has been discontinued and
redesignated to 1845-0012. We estimate that there is no change in
burden associated with this final change in the regulations.
Section 668.8--Eligible Program
The final regulations in Sec. 668.8(n) define a comprehensive
transition and postsecondary program as an eligible program when it is
approved by the Secretary. The final change in the definition of an
eligible program does not impact burden.
While the current regulations in Sec. 668.8 point to OMB 1845-
0537, this collection package has been discontinued, we estimate that
there is no change in burden associated with this final change in the
regulations.
Section 668.232--Program Eligibility
The final regulations require an institution that wishes to provide
a comprehensive transition and postsecondary program to apply and
receive approval from the Secretary. The final regulations outline the
elements that an institution must include in its application,
including: A detailed description of the comprehensive transition and
postsecondary program; The policy for determining whether a student
enrolled in the program is making satisfactory academic progress; A
statement of the number of weeks of instructional time and the number
of semester or quarter credit hours or clock hours in the program; A
description of the educational credential offered or identified outcome
or outcomes established by the institution for all students enrolled in
the program; A copy of the letter or notice sent to the institution's
accrediting agency informing the agency of its comprehensive transition
and postsecondary program; and Any other information the Department may
require.
We estimate that the final regulations will increase burden for
institutions by 66 hours in OMB Control Number 1845-NEW4.
Section 668.233--Student Eligibility
The final regulations in Sec. 668.233 provide that a student with
intellectual disabilities enrolled in a comprehensive transition and
postsecondary program may be eligible for Title IV, HEA program
assistance under the Federal Pell grant, FSEOG, and FWS programs if:
The student is making satisfactory academic program in accordance with
the institution's published standards for students enrolled in the
comprehensive transition and postsecondary program; and the institution
obtains a record from a LEA that the student is or was eligible for
FAPE under the IDEA. If the FAPE record does not indicate that the
student has an intellectual disability, the institution must obtain
documentation from another source that identifies the intellectual
disability.
We estimate that the final regulations will increase burden for
institutions by 768 hours in OMB Control Number 1845-NEW4.
Section 668.43(a)(7)--Institutional Information
The final regulations change the phrase ``any special facilities
and services'' to ``the services and facilities,'' and replaces the
phrase ``disabled students'' with ``students with disabilities.'' The
final changes also clarify that a description of services and
facilities for students with disabilities must also contain the
services and facilities available for students with intellectual
disabilities.
We estimate that the final regulations will increase burden for
institutions by 44 hours in OMB Control Number 1845-0022.
Federal Work Study Programs
Section 675.16--Conforming FWS Payment Requirements to the Cash
Management Regulations
The final regulations in Sec. 675.16(b)(1)(ii) and (b)(2), amend
the FWS regulations in three ways regarding the use of current award
year FWS funds to pay prior award year charges. First, the amount of
prior award year charges that could be paid with current award year FWS
funds increases to not more than $200. Second, the FWS provision that
allows an institution to pay for prior award year charges of $100 or
more is removed. Finally, we clarify that the $200 limit applies to all
Title IV, HEA program funds that an institution uses to pay prior-year
charges. These changes to conform the FWS payment requirements to the
current cash management regulations do not impact burden.
We estimate that there is no change in burden associated with this
section of the regulations under OMB Control Number 1845-0019.
TEACH Grant Program
Section 686.41--Period of Suspension
The final regulations in Sec. 686.41 provide that a TEACH Grant
recipient who is called or ordered to active military duty (or his or
her representative) may request a suspension of the eight-year period
in increments not to exceed three years. Once the recipient has
exceeded the 3-year suspension period, the recipient (or his or her
representative) may request a discharge of all or a portion of his or
her teaching service obligation.
We estimate that the final regulations will increase burden for
institutions in OMB Control Number 1845-0083. The Department will
submit an 83-C incorporating the changes after the final regulations
have published.
Section 686.42--Discharge of Agreement To Serve
The final regulations in Sec. 686.42 provide that the recipient
may qualify for a proportional discharge of his or her service
obligation based on the number of years the recipient has been called
or ordered to active military duty.
[[Page 55929]]
To obtain the discharge, the recipient (or his or her
representative) is required to provide the Department:
A written statement from his or her commanding or personnel officer
certifying that the recipient is on active duty status in the U.S.
Armed Forces, the date on which that service began, and the date the
service is expected to end; and a copy of his or her official military
orders and military identification.
The Department would notify a TEACH Grant recipient of the decision
reached on his or her request for a partial or full discharge of the
teaching service obligation. The grant recipient is responsible for
fulfilling any teaching service obligation that is not discharged.
We estimate that the final regulations will increase burden for
institutions in OMB Control Number 1845-0083. The Department will
submit an 83-C incorporating the changes after the final regulations
have published.
Federal Pell Grant Program
Two Federal Pell Grants in an Award Year
Section 690.67(a)--Student Eligibility for a Second Scheduled Award
The final regulations amend Sec. 690.67(a) to provide that a
student is eligible for a second Scheduled Award if the student is
enrolled for credit or clock hours attributable to the student's second
academic year in the award year, and is enrolled as at least a half-
time student in a program leading to a bachelor's or associate degree
or other recognized educational credential (such as a postsecondary
certificate or diploma), except as provided for students with
intellectual disabilities. To the extent that the institution will be
reporting these second Scheduled Award Pell disbursements via the
Common Origination and Delivery (COD) system, there will be some
additional burden for institutions.
We estimate that the regulations will increase burden for
institutions by 47,432 hours in OMB Control Number 1845-NEW5.
Section 690.67(b)--Transfer Students
The final regulations in Sec. 690.67(b) provide that an
institution determine the credit or clock hours that a transfer student
has earned at a prior institution during the award year based on the
Federal Pell Grant disbursements that the student received at the prior
institution during the award year in relation to the student's
Scheduled Award at that prior institution. The credit or clock hours
that the student would be considered to have earned would be in the
same proportion to credit or clock hours in the current institution's
academic year as the disbursements that the student has received at the
prior institution in the award year are in proportion to the student's
Scheduled Award at the prior institution.
To the extent that the institution will be reviewing the transfer
records of these students and subsequently reporting second Scheduled
Award Pell disbursements via the Common Origination and Delivery (COD)
system, there will be some additional burden for institutions.
We estimate that the final regulations will increase burden for
institutions by 14,400 hours in OMB Control Number 1845-NEW5.
Section 690.67(c)--Special Circumstances
The final regulations in Sec. 690.67(c) provide that in a payment
period where there is insufficient remaining eligibility from the first
Scheduled Award to make full payment for the payment period, a
financial aid administrator may waive the requirement that a student
complete the credit or clock hours in the student's first academic year
in the award year due to circumstances beyond the student's control.
The financial aid administrator is required to make and document the
determination on an individual basis.
To the extent that the institution will be documenting these
special circumstances and subsequently awarding second Pell grants, the
institutions will be reporting the second Pell disbursements via the
Common Origination and Delivery (COD) system, there will be some
additional burden for institutions.
Section 690.67(d)--Nonapplicable Credit or Clock Hours
The final regulation in Sec. 690.97(d) states that, in determining
a student's eligibility for a second Scheduled Award in an award year,
an institution may not use credit or clock hours that the student
received based on Advanced Placement (AP) programs, International
Baccalaureate (IB) programs, testing out, life experience, or similar
competency measures.
To the extent that institutions will be making determinations about
the applicability of AP, IB, or other non-applicable courses,
institutions will subsequently award second Pell grants and thereafter
report Pell disbursements via the Common Origination and Delivery (COD)
system, thus there will be some additional reporting burden for
institutions.
We estimate that the final regulations will increase burden for
institutions by 2,032 hours in OMB Control Number 1845-NEW5.
Section 690.64--Payment Period in Two Award Years
The final regulation in Sec. 690.64 states that, if a student is
enrolled in a crossover payment period as a half-time or less-than-
half-time student, the current requirements generally apply.
If a student is enrolled as a three-quarter-time or full-time
student, an institution must consider the payment period to be in the
award year in which the student would receive the greater payment for
the payment period based on the information available at the time that
the student's Federal Pell Grant is initially calculated. If the
institution subsequently receives information that the student would
receive a greater payment for the payment period by reassigning the
payment to the other award year, the institution is required to
reassign the payment to the award year providing the greater payment
within specified time frames.
A student may request that the institution place the payment period
in the award year that can be expected to result in the student
receiving a greater amount of Federal Pell Grants over the two award
years in which the payment period is scheduled to occur. If the student
makes that request, the institution must assign the payment period to
that award year.
To the extent that the institution will be reviewing enrollment
status in each of the two award years and making determinations about
which award year must be used and subsequently reporting these second
Scheduled Award Pell disbursements via the Common Origination and
Delivery (COD) system, there will be some additional burden for
institutions.
We estimate that the final regulations will increase burden for
institutions by 33,881 hours in OMB Control Number 1845-NEW5.
Section 690.63(h)--Payment From Two Scheduled Awards
Under the final regulations in Sec. 690.63(h), if a student is
eligible for the remaining portion of a first Scheduled Award in an
award year and for a payment from the second Scheduled Award, the
student's payment would be calculated using the annual award for his or
her enrollment status for the payment period. The student's payment
would be the remaining amount of the first Scheduled Award being
completed plus an amount from the second Scheduled Award in
[[Page 55930]]
the award year up to the total amount of the payment for the payment
period.
We estimate that the final regulations will increase burden for
institutions by 8,471 hours in OMB Control Number 1845-NEW5.
Part 692 Leveraging Educational Assistance Partnership Program
Section 692.21(k)--Notification to Students of LEAP Grant Funding
Sources
The final regulations require that the State program notify
eligible students that grants under the LEAP Grant Program are (1) LEAP
Grants and (2) funded by the Federal Government, the State, and, where
applicable, other contributing partners.
The implementation of the final regulations for the changes to LEAP
and the introduction of the GAP program will increase burden to States.
We estimate that the burden in these final regulations will be
associated with the application and performance report forms under
development. These forms will be developed after the final regulations
are published to ensure that the forms comport with the finalized
requirements. The new forms will be submitted to OMB for approval under
OMB Control Number 1845-NEW7.
Section 692.100--Requirements a State Must Meet To Receive GAP Funds
The final regulations in Sec. 692.100 describe the requirements
that a State must meet to receive an allotment under this program
including submitting an application on behalf of a partnership and
serving as the primary administrative unit of the partnership. Under
Sec. 692.100(a)(6), a State must include in its application the steps
it plans to take to ensure, to the extent practicable, that students
who receive a LEAP Grant under GAP would persist to degree completion.
Under Sec. 692.100(a)(8) a State GAP Program is required to notify
eligible students that the grants they receive under GAP are LEAP
Grants and that the grants are funded by the Federal Government, the
State and where applicable, other contributing partners.
The implementation of the final regulations for the changes to LEAP
and the introduction of the GAP program will increase burden to States.
We estimate that the burden in these final regulations will be
associated with the application and performance report forms under
development. These forms will be developed after the final regulations
are published to ensure that the forms comport with the finalized
requirements. The new forms will be submitted to OMB for approval under
OMB Control Number 1845-NEW7.
Section 692.101--Requirements That Must Be Met by a State Partnership
The final regulations in Sec. 692.101(b)(2) provide that a degree-
granting institution of higher education that is in a partnership under
the GAP Program must recruit, admit, and provide institutional grant
aid to participating eligible students as agreed to with the State
agency.
The implementation of the final regulations for the changes to LEAP
and the introduction of the GAP program will increase burden to States.
We estimate that the burden in these final regulations will be
associated with the application and performance report forms under
development. These forms will be developed after the final regulations
are published to ensure that the forms comport with the finalized
requirements. The new forms will be submitted to OMB for approval under
OMB Control Number 1845-NEW7.
Section 692.111--Purposes for Which a State May Use Its GAP Grant
The final regulations in Sec. 692.111 provide that each State
receiving an allotment shall annually notify potentially eligible
students in grades 7 through 12 in the State, and their families, of
their potential eligibility for student financial assistance, including
a LEAP Grant under GAP, to attend a LEAP-participating institution of
higher education.
The notice shall include information about early information and
intervention, mentoring, or outreach programs available to the student.
The notice shall provide a nonbinding estimate of the total amount of
financial aid that an eligible student with a similar income level may
expect to receive, including an estimate of the amount of a LEAP Grant
under GAP and an estimate of the amount of grants, loans, and all other
available types of aid from the major Federal and State financial aid
programs. The final notice will also include any additional
requirements that the State may require for receipt of a LEAP Grant
under GAP.
The implementation of the final regulations for the changes to LEAP
and the introduction of the GAP program will increase burden to States.
We estimate that the burden in these final regulations will be
associated with the application and performance report forms under
development. These forms will be developed after the final regulations
are published to ensure that the forms comport with the finalized
requirements. The new forms will be submitted to OMB for approval under
OMB Control Number 1845-NEW7.
Consistent with this discussion, the following chart describes the
sections of the final regulations involving information collections,
the information being collected, and the collections that the
Department will submit to the Office of Management and Budget for
approval and public comment under the Paperwork and Reduction Act.
------------------------------------------------------------------------
Regulatory section Information section Collection
------------------------------------------------------------------------
668.14(b)(31)............... Providing that an OMB 1845-0022. There
institution that will be an increase
conducts a teach- in burden of 160
out at a site of a hours.
closed institution
may, under certain
conditions,
establish that site
as an additional
location (see
sections 487(f) and
498 of the HEA).
668.18...................... Establishing OMB 1845-NEW1. There
requirements under will be a new
which an collection. A
institution must separate 60-day
readmit Federal Register
servicemembers to notice will be
the same academic published to
status they had solicit comments.
when they last There will be an
attended the increase in burden
institution (see of 1,513 hours.
section 484C of the
HEA).
668.23(d)(4)................ Adds new OMB 1845-0038. There
requirements to will be an increase
include in the in burden of 165
audited financial hours.
statement footnote
the non-Federal and
Federal revenue
that was included
in the 90/10
calculation.
668.28...................... Establishing new OMB 1845-NEW2. There
requirements for will be a new
determining how collection. A
proprietary separate 60-day
institutions Federal Register
calculate the notice will be
amount and percent published to
of revenue derived solicit comments.
from sources other There will be an
than Title IV, HEA increase in burden
program funds (see of 3,088 hours.
section 487(d) of
the HEA).
[[Page 55931]]
668.43(a)(5)(iv)............ Expanding the OMB 1845-0022. There
information that an will be an increase
institution must in burden of 968
make available to hours.
prospective and
enrolled students
to include a
description of any
plans the
institution has to
improve its
academic program
(see section 485(a)
of the HEA).
668.14(b)(30), 668.43(a)(10) Providing that an OMB 1845-0022. There
institution must will be an increase
certify that it has in burden of 92,544
plans to hours.
effectively combat
unauthorized
distribution of
copyrighted
material and will
offer alternatives
to illegal
downloading or peer-
to-peer
distribution of
intellectual
property (see
sections 485(a)(1)
and 487(a) of the
HEA).
668.41...................... Expanding the OMB 1845-0004. There
information that will be an increase
institutions must in burden of 8,541
make available to hours.
prospective and
enrolled students
to include
information on: the
employment and
placement of
students, and the
retention rates of
first-time, full-
time undergraduate
students.
668.45...................... Expanding the OMB 1845-0004. There
information that will be an increase
institutions must in burden of 7,488
make available to hours.
prospective
students to include
completion and
graduation rate
data that is
disaggregated by
gender, race, and
grant or loan
assistance (see
section 485(a) of
the HEA).
668.46(c)(3), (e), (g)...... Expanding the list OMB 1845-0022. There
of crimes that will be an increase
institutions must in burden of 18,509
include in the hate hours.
crimes statistics
reported to the
Department.
Requiring
institutions to
include in the
annual security
report a statement
of emergency
response and
evacuation
procedures (see
section 485(f) of
the HEA).
668.41(a)................... Requiring OMB 1845-0004. There
institutions that is no change in
provide on-campus burden associated
housing facilities with this section
to develop and make of the final
available a missing regulations.
student
notification policy
and allow students
who reside on
campus to
confidentially
register contact
information (see
section 485(j) of
the HEA).
668.46(b), (h).............. Requiring OMB 1845-0022. There
institutions that will be an increase
provide on-campus in burden of 2,879
housing facilities hours.
to develop and make
available a missing
student
notification policy
and allow students
who reside on
campus to
confidentially
register contact
information (see
section 485(j) of
the HEA).
668.41(e)................... Establishing OMB 1845-0004. There
requirements for is no change in
institutions that burden associated
maintain on-campus with this section
housing facilities of the final
to publish annually regulations.
a fire safety
report, maintain a
fire log, and
report fire
statistics to the
Department (see
section 485(i) of
the HEA).
668.49...................... Establishing OMB 1845-NEW3. There
requirements for will be a new
institutions that collection. A
maintain on-campus separate 60-day
housing facilities Federal Register
to publish annually notice will be
a fire safety published to
report, maintain a solicit comments.
fire log, and There will be an
report fire increase in burden
statistics to the of 7,283 hours.
Department (see
section 485(i) of
the HEA).
668.232..................... Expanding the OMB 1845-NEW4. There
eligibility for will be a new
Federal Pell Grant, collection. A
FWS, and FSEOG separate 60-day
Program funds to Federal Register
students with notice will be
intellectual published to
disabilities (see solicit comments.
sections 484(s) and There will be an
760 of the HEA). increase in burden
of 66 hours.
668.233..................... Expanding the OMB 1845-NEW4. There
eligibility for will be a new
Federal Pell Grant, collection. A
FWS, and FSEOG separate 60-day
Program funds to Federal Register
students with notice will be
intellectual published to
disabilities (see solicit comments.
sections 484(s) and There will be an
760 of the HEA). increase in burden
of 768 hours.
688.43(a)(7)................ Requires that OMB 1845-0022. There
institutions report will be an increase
a description of in burden of 44
services and hours.
facilities for
student with
intellectual
disabilities.
686.41, 686.42.............. Establishing OMB 1845-0083.
extenuating Changes will be
circumstances under incorporated into
which a TEACH Grant the Agreement to
recipient may be Serve form.
excused from
fulfilling all or
part of his or her
service obligation
(see section
420N(d)(2) of the
HEA).
690.67, 690.64, 690.63(h)... Establishing OMB 1845-NEW5. There
requirements under will be a new
which students may collection. A
receive up to two separate 60-day
Federal Pell Grant Federal Register
Scheduled Awards notice will be
during a single published to
award year (see solicit comments.
section There will be an
401(b)(5)(A) of the increase in burden
HEA). of 109,645 hours.
[[Page 55932]]
692.21, 692.100, 692.101, Requiring the State OMB 1845-NEW6. There
692.111. program to notify will be a new
students that collection. A
grants are LEAP separate 60-day
Grants that are Federal Register
funded by the notice will be
Federal Government, published to
the State, and for solicit comments.
LEAP Grants to
students under the
new Grants for
Access and
Persistence (GAP)
Program, other
contributing
partners (see
section 415C(b) of
the HEA).
Establishing the
activities, awards,
allotments to
States, matching
funds requirements,
consumer
information
requirements,
application
requirements, and
other requirements
needed to begin and
continue
participating in
the GAP Program
(see sections 415B
and 415E of the
HEA).
------------------------------------------------------------------------
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(Catalog of Federal Domestic Assistance Numbers: 84.063 Federal Pell
Grant Program; 84.033 Federal Work-Study Program; 84.379 TEACH Grant
Program; 84.069 LEAP)
List of Subjects
34 CFR Part 600
Colleges and universities, Foreign relations, Grant programs--
education, Loan programs--education, Reporting and recordkeeping
requirements, Student aid, Vocational education.
34 CFR Part 668
Administrative practice and procedure, Aliens, Colleges and
universities, Consumer protection, Grant programs--education, Loan
programs--education, Reporting and recordkeeping requirements,
Selective Service System, Student aid, Vocational education.
34 CFR Part 675
Colleges and universities, Employment, Grant programs--education,
Reporting and recordkeeping requirements, Student aid.
34 CFR Part 686
Administrative practice and procedure, Colleges and universities,
Education, Elementary and secondary education, Grant programs--
education, Reporting and recordkeeping requirements, Student aid.
34 CFR Part 690
Colleges and universities, Education of disadvantaged, Grant
programs--education, Reporting and recordkeeping requirements, Student
aid.
34 CFR Part 692
Colleges and universities, Grant programs--education, Reporting and
recordkeeping requirements, Student aid.
Dated: October 16, 2009.
Arne Duncan,
Secretary of Education.
0
For the reasons discussed in the preamble, the Secretary amends parts
600, 668, 675, 686, 690, and 692 of title 34 of the Code of Federal
Regulations as follows:
PART 600--INSTITUTIONAL ELIGIBILITY UNDER THE HIGHER EDUCATION ACT
OF 1965, AS AMENDED
0
1. The authority citation for part 600 continues to read as follows:
Authority: : 20 U.S.C. 1001, 1002, 1003, 1088, 1091, 1094,
1099b, and 1099c, unless otherwise noted.
0
2. Section 600.2 is amended by:
0
A. Revising paragraph (1)(i) of the definition of educational program.
0
B. Adding, in alphabetical order, a definition for teach-out plan.
0
C. Revising the authority citation at the end of the section.
The revisions and addition read as follows:
Sec. 600.2 Definitions.
* * * * *
Educational program: (1) * * *
(i) Leads to an academic, professional, or vocational degree, or
certificate, or other recognized educational credential, or is a
comprehensive transition and postsecondary program, as described in 34
CFR part 668, subpart O; and
* * * * *
Teach-out plan: A written plan developed by an institution that
provides for the equitable treatment of students if an institution, or
an institutional location that provides 100 percent of at least one
program, ceases to operate before all students have completed their
program of study, and may include, if required by the institution's
accrediting agency, a teach-out agreement between institutions.
* * * * *
(Authority: 20 U.S.C. 1071, et seq., 1078-2, 1088, 1091, 1094,
1099b, 1099c, 1141; 26 U.S.C. 501(c))
0
3. Section 600.4 is amended by:
0
A. Revising paragraph (a)(4).
0
B. Revising the authority citation at the end of the section.
The revisions read as follows:
Sec. 600.4 Institution of higher education.
(a) * * *
(4)(i) Provides an educational program--
(A) For which it awards an associate, baccalaureate, graduate, or
professional degree;
(B) That is at least a two-academic-year program acceptable for
full credit toward a baccalaureate degree; or
(C) That is at least a one-academic-year training program that
leads to a certificate, degree, or other recognized educational
credential and prepares students for gainful employment in a recognized
occupation; and
(ii) May provide a comprehensive transition and postsecondary
program, as described in 34 CFR part 668, subpart O; and
* * * * *
(Authority: 20 U.S.C. 1091, 1094, 1099b, 1141(a))
0
4. Section 600.5 is amended by:
0
A. Revising paragraph (a)(5).
0
B. In paragraph (a)(6), adding the word ``and'' after the punctuation
``;''.
[[Page 55933]]
0
C. In paragraph (a)(7), removing the word ``; and'' and adding, in its
place, the punctuation ``.''.
0
D. Removing paragraph (a)(8).
0
E. Removing paragraphs (d) through (g).
0
F. Redesignating paragraph (h) as paragraph (d).
0
G. Adding a new paragraph (e).
0
H. Revising the OMB control number and authority citation at the end of
the section.
The revisions and addition read as follows:
Sec. 600.5 Proprietary institution of higher education.
(a) * * *
(5)(i)(A) Provides an eligible program of training, as defined in
34 CFR 668.8, to prepare students for gainful employment in a
recognized occupation; or
(B)(1) Has provided a program leading to a baccalaureate degree in
liberal arts, as defined in paragraph (e) of this section, continuously
since January 1, 2009; and
(2) Is accredited by a recognized regional accrediting agency or
association, and has continuously held such accreditation since October
1, 2007, or earlier; and
(ii) May provide a comprehensive transition and postsecondary
program for students with intellectual disabilities, as provided in 34
CFR part 668, subpart O;
* * * * *
(e) For purposes of this section, a ``program leading to a
baccalaureate degree in liberal arts'' is a program that the
institution's recognized regional accreditation agency or organization
determines, is a general instructional program in the liberal arts
subjects, the humanities disciplines, or the general curriculum,
falling within one or more of the following generally-accepted
instructional categories comprising such programs, but including only
instruction in regular programs, and excluding independently-designed
programs, individualized programs, and unstructured studies:
(1) A program that is a structured combination of the arts,
biological and physical sciences, social sciences, and humanities,
emphasizing breadth of study.
(2) An undifferentiated program that includes instruction in the
general arts or general science.
(3) A program that focuses on combined studies and research in the
humanities subjects as distinguished from the social and physical
sciences, emphasizing languages, literatures, art, music, philosophy,
and religion.
(4) Any single instructional program in liberal arts and sciences,
general studies, and humanities not listed in paragraph (e)(1) through
(e)(3) of this section.
(Approved by the Office of Management and Budget under control
number 1845-0012)
(Authority: 20 U.S.C. 1088, 1091)
0
5. Section 600.6 is amended by:
0
A. Revising paragraph (a)(4).
0
B. Revising the authority citation at the end of the section.
The revisions read as follows:
Sec. 600.6 Postsecondary vocational institution.
(a) * * *
(4)(i) Provides an eligible program of training, as defined in 34
CFR 668.8, to prepare students for gainful employment in a recognized
occupation; and
(ii) May provide a comprehensive transition and postsecondary
program for students with intellectual disabilities, as provided in 34
CFR part 668, subpart O;
* * * * *
(Authority: 20 U.S.C. 1088, 1091, 1094(c)(3))
0
6. Section 600.32 is amended by:
0
A. In paragraph (a), removing the words ``(b) and (c)'' and adding, in
their place, the words ``(b), (c), and (d)''.
0
B. Redesignating paragraph (d) as paragraph (e).
0
C. Adding a new paragraph (d).
0
D. Revising the authority citation at the end of the section.
The addition and revision read as follows:
Sec. 600.32 Eligibility of additional locations.
* * * * *
(d)(1) An institution that conducts a teach-out at a site of a
closed institution may apply to have that site approved as an
additional location if--
(i) The closed institution ceased operations and the Secretary has
taken an action to limit, suspend, or terminate the institution's
participation under Sec. 600.41 or subpart G of this part, or has
taken an emergency action under 34 CFR 668.83; and
(ii) The teach-out plan required under 34 CFR 668.14(b)(31) is
approved by the closed institution's accrediting agency.
(2)(i) An institution that conducts a teach-out and is approved to
add an additional location described in paragraph (d)(1) of this
section--
(A) Does not have to meet the two-year in existence requirement of
Sec. 600.5(a)(7) or Sec. 600.6(a)(6) for the additional location
described in paragraph (d)(1) of this section;
(B) Is not responsible for any liabilities of the closed
institution as provided under paragraph (c)(1) and (c)(2) of this
section if the institutions are not related parties and there is no
commonality of ownership or management between the institutions, as
described in 34 CFR 668.188(b) and 34 CFR 668.207(b); and
(C) Will not have the default rate of the closed institution
included in the calculation of its default rate, as would otherwise be
required under 34 CFR 668.184 and 34 CFR 668.203, if the institutions
are not related parties and there is no commonality of ownership or
management between the institutions, as described in 34 CFR 668.188(b)
and 34 CFR 668.207(b).
(ii) As a condition for approving an additional location under
paragraph (d)(1) of this section, the Secretary may require that
payments from the institution conducting the teach-out to the owners or
related parties of the closed institution, are used to satisfy any
liabilities owed by the closed institution.
* * * * *
(Authority: 20 U.S.C. 1088, 1099c, 1141)
PART 668--STUDENT ASSISTANCE GENERAL PROVISIONS
0
7. The authority citation for part 668 continues to read as follows:
Authority: : 20 U.S.C. 1001, 1002, 1003, 1070g, 1085, 1088,
1091, 1092, 1094, 1099c, and 1099c-1, unless otherwise noted.
0
8. Section 668.8 is amended by:
0
A. In paragraph (d)(2)(iv)(B), removing the word ``or'' that appears
after the punctuation ``;''.
0
B. In paragraph (d)(3)(v), removing the punctuation ``.'' and adding,
in its place, the word ``; or''.
0
C. Adding paragraph (d)(4).
0
D. Revising paragraph (n).
0
E. Removing the OMB control number at the end of the section.
The addition and revision read as follows:
Sec. 668.8 Eligible program.
(d) * * *
(4) For purposes of a proprietary institution of higher education
only, is a program leading to a baccalaureate degree in liberal arts,
as defined in 34 CFR 600.5(e), that--
(i) Is provided by an institution that is accredited by a
recognized regional accrediting agency or association, and has
continuously held such accreditation since October 1, 2007, or earlier;
and
(ii) The institution has provided continuously since January 1,
2009.
* * * * *
(n) For Title IV, HEA program purposes, eligible program includes a
[[Page 55934]]
direct assessment program approved by the Secretary under Sec. 668.10
and a comprehensive transition and postsecondary program approved by
the Secretary under Sec. 668.232.
* * * * *
0
9. Section 668.13(c)(1) is revised to read as follows:
Sec. 668.13 Certification procedures.
* * * * *
(c) Provisional certification. (1)(i) The Secretary may
provisionally certify an institution if--
(A) The institution seeks initial participation in a Title IV, HEA
program;
(B) The institution is an eligible institution that has undergone a
change in ownership that results in a change in control according to
the provisions of 34 CFR part 600;
(C) The institution is a participating institution--
(1) That is applying for a certification that the institution meets
the standards of this subpart;
(2) That the Secretary determines has jeopardized its ability to
perform its financial responsibilities by not meeting the factors of
financial responsibility under Sec. 668.15 and subpart L of this part
or the standards of administrative capability under Sec. 668.16; and
(3) Whose participation has been limited or suspended under subpart
G of this part, or voluntarily enters into provisional certification;
(D) The institution seeks a renewal of participation in a Title IV,
HEA program after the expiration of a prior period of participation in
that program; or
(E) The institution is a participating institution that was
accredited or preaccredited by a nationally recognized accrediting
agency on the day before the Secretary withdrew the Secretary's
recognition of that agency according to the provisions contained in 34
CFR part 603.
(ii) A proprietary institution's certification automatically
becomes provisional at the start of a fiscal year after it did not
derive at least 10 percent of its revenue for its preceding fiscal year
from sources other than Title IV, HEA program funds, as required under
Sec. 668.14(b)(16).
* * * * *
0
10. Section 668.14 is amended by:
0
A. Adding paragraph (b)(16).
0
B. In paragraph (b)(25)(ii), removing the word ``and'' that appears
after the punctuation ``;''.
0
C. Adding paragraph (b)(30).
0
D. Adding paragraph (b)(31).
0
E. Revising the OMB control number at the end of the section.
The additions and revision read as follows:
Sec. 668.14 Program participation agreement.
* * * * *
(b) * * *
(16) For a proprietary institution, the institution will derive at
least 10 percent of its revenues for each fiscal year from sources
other than Title IV, HEA program funds, as provided in Sec. 668.28(a)
and (b), or be subject to sanctions described in Sec. 668.28(c);
* * * * *
(30) The institution--
(i) Has developed and implemented written plans to effectively
combat the unauthorized distribution of copyrighted material by users
of the institution's network, without unduly interfering with
educational and research use of the network, that include--
(A) The use of one or more technology-based deterrents;
(B) Mechanisms for educating and informing its community about
appropriate versus inappropriate use of copyrighted material, including
that described in Sec. 668.43(a)(10);
(C) Procedures for handling unauthorized distribution of
copyrighted material, including disciplinary procedures; and
(D) Procedures for periodically reviewing the effectiveness of the
plans to combat the unauthorized distribution of copyrighted materials
by users of the institution's network using relevant assessment
criteria. No particular technology measures are favored or required for
inclusion in an institution's plans, and each institution retains the
authority to determine what its particular plans for compliance with
paragraph (b)(30) of this section will be, including those that
prohibit content monitoring; and
(ii) Will, in consultation with the chief technology officer or
other designated officer of the institution--
(A) Periodically review the legal alternatives for downloading or
otherwise acquiring copyrighted material;
(B) Make available the results of the review in paragraph
(b)(30)(ii)(A) of this section to its students through a Web site or
other means; and
(C) To the extent practicable, offer legal alternatives for
downloading or otherwise acquiring copyrighted material, as determined
by the institution; and
(31) The institution will submit a teach-out plan to its
accrediting agency in compliance with 34 CFR 602.24(c), and the
standards of the institution's accrediting agency upon the occurrence
of any of the following events:
(i) The Secretary initiates the limitation, suspension, or
termination of the participation of an institution in any Title IV, HEA
program under 34 CFR 600.41 or subpart G of this part or initiates an
emergency action under Sec. 668.83.
(ii) The institution's accrediting agency acts to withdraw,
terminate, or suspend the accreditation or preaccreditation of the
institution.
(iii) The institution's State licensing or authorizing agency
revokes the institution's license or legal authorization to provide an
educational program.
(iv) The institution intends to close a location that provides 100
percent of at least one program.
(v) The institution otherwise intends to cease operations.
* * * * *
(Approved by the Office of Management and Budget under control
number 1845-0022)
* * * * *
0
11. Section 668.18 is added to subpart B of part 668 to read as
follows:
Sec. 668.18 Readmission requirements for servicemembers.
(a) General. (1) An institution may not deny readmission to a
person who is a member of, applies to be a member of, performs, has
performed, applies to perform, or has an obligation to perform, service
in the uniformed services on the basis of that membership, application
for membership, performance of service, application for service, or
obligation to perform service.
(2)(i) An institution must promptly readmit to the institution a
person described in paragraph (a)(1) of this section with the same
academic status as the student had when the student last attended the
institution or was last admitted to the institution, but did not begin
attendance because of that membership, application for membership,
performance of service, application for service, or obligation to
perform service.
(ii) ``Promptly readmit'' means that the institution must readmit
the student into the next class or classes in the student's program
beginning after the student provides notice of his or her intent to
reenroll, unless the student requests a later date of readmission or
unusual circumstances require the institution to admit the student at a
later date.
(iii) To readmit a person with the ``same academic status'' means
that the institution admits the student--
(A) To the same program to which he or she was last admitted by the
[[Page 55935]]
institution or, if that exact program is no longer offered, the program
that is most similar to that program, unless the student requests or
agrees to admission to a different program;
(B) At the same enrollment status that the student last held at the
institution, unless the student requests or agrees to admission at a
different enrollment status;
(C) With the same number of credit hours or clock hours completed
previously by the student, unless the student is readmitted to a
different program to which the completed credit hours or clock hours
are not transferable;
(D) With the same academic standing (e.g., with the same
satisfactory academic progress status) the student previously had; and
(E)(1) If the student is readmitted to the same program, for the
first academic year in which the student returns, assessing--
(i) The tuition and fee charges that the student was or would have
been assessed for the academic year during which the student left the
institution; or
(ii) Up to the amount of tuition and fee charges that other
students in the program are assessed for that academic year, if
veterans' education benefits, as defined in section 480(c) of the HEA,
or other servicemember education benefits, will pay the amount in
excess of the tuition and fee charges assessed for the academic year in
which the student left the institution; or
(2) If the student is admitted to a different program, and for
subsequent academic years for a student admitted to the same program,
assessing no more than the tuition and fee charges that other students
in the program are assessed for that academic year.
(iv)(A) If the institution determines that the student is not
prepared to resume the program with the same academic status at the
point where the student left off, or will not be able to complete the
program, the institution must make reasonable efforts at no extra cost
to the student to help the student become prepared or to enable the
student to complete the program including, but not limited to,
providing refresher courses at no extra cost to the student and
allowing the student to retake a pretest at no extra cost to the
student.
(B) The institution is not required to readmit the student on his
or her return if--
(1) After reasonable efforts by the institution, the institution
determines that the student is not prepared to resume the program at
the point where he or she left off;
(2) After reasonable efforts by the institution, the institution
determines that the student is unable to complete the program; or
(3) The institution determines that there are no reasonable efforts
the institution can take to prepare the student to resume the program
at the point where he or she left off or to enable the student to
complete the program.
(C)(1) ``Reasonable efforts'' means actions that do not place an
undue hardship on the institution.
(2) ``Undue hardship'' means an action requiring significant
difficulty or expense when considered in light of the overall financial
resources of the institution and the impact otherwise of such action on
the operation of the institution.
(D) The institution carries the burden to prove by a preponderance
of the evidence that the student is not prepared to resume the program
with the same academic status at the point where the student left off,
or that the student will not be able to complete the program.
(3) This section applies to an institution that has continued in
operation since the student ceased attending or was last admitted to
the institution but did not begin attendance, notwithstanding any
changes of ownership of the institution since the student ceased
attendance.
(4) The requirements of this section supersede any State law
(including any local law or ordinance), contract, agreement, policy,
plan, practice, or other matter that reduces, limits, or eliminates in
any manner any right or benefit provided by this section for the period
of enrollment during which the student resumes attendance, and
continuing so long as the institution is unable to comply with such
requirements through other means.
(b) Service in the uniformed services. For purposes of this
section, service in the uniformed services means service, whether
voluntary or involuntary, in the Armed Forces, including service by a
member of the National Guard or Reserve, on active duty, active duty
for training, or full-time National Guard duty under Federal authority,
for a period of more than 30 consecutive days under a call or order to
active duty of more than 30 consecutive days.
(c) Readmission procedures. (1) Any student whose absence from an
institution is necessitated by reason of service in the uniformed
services shall be entitled to readmission to the institution if--
(i) Except as provided in paragraph (d) of this section, the
student (or an appropriate officer of the Armed Forces or official of
the Department of Defense) gives advance oral or written notice of such
service to an office designated by the institution, and provides such
notice as far in advance as is reasonable under the circumstances;
(ii) The cumulative length of the absence and of all previous
absences from that institution by reason of service in the uniformed
services, including only the time the student spends actually
performing service in the uniformed services, does not exceed five
years; and
(iii) Except as provided in paragraph (f) of this section, the
student gives oral or written notice of his or her intent to return to
an office designated by the institution--
(A) For a student who completes a period of service in the
uniformed services, not later than three years after the completion of
the period of service; or
(B) For a student who is hospitalized for or convalescing from an
illness or injury incurred in or aggravated during the performance of
service in the uniformed services, not later than two years after the
end of the period that is necessary for recovery from such illness or
injury.
(2)(i) An institution must designate one or more offices at the
institution that a student may contact to provide notification of
service required by paragraph (c)(1)(i) of this section and
notification of intent to return required by paragraph (c)(1)(iii) of
this section.
(ii) An institution may not require that the notice provided by the
student under paragraph (c)(1)(i) or (c)(1)(iii) of this section follow
any particular format.
(iii) The notice provided by the student under paragraph (c)(1)(i)
of this section--
(A) May not be subject to any rule for timeliness; timeliness must
be determined by the facts in any particular case; and
(B) Does not need to indicate whether the student intends to return
to the institution.
(iv) For purposes of paragraph (c)(1)(i) of this section, an
``appropriate officer'' is a commissioned, warrant, or noncommissioned
officer authorized to give such notice by the military service
concerned.
(d) Exceptions to advance notice. (1) No notice is required under
paragraph (c)(1)(i) of this section if the giving of such notice is
precluded by military necessity, such as--
(i) A mission, operation, exercise, or requirement that is
classified; or
[[Page 55936]]
(ii) A pending or ongoing mission, operation, exercise, or
requirement that may be compromised or otherwise adversely affected by
public knowledge.
(2) Any student (or an appropriate officer of the Armed Forces or
official of the Department of Defense) who did not give advance written
or oral notice of service to the appropriate official at the
institution in accordance with paragraph (c)(1) of this section may
meet the notice requirement by submitting, at the time the student
seeks readmission, an attestation to the institution that the student
performed service in the uniformed services that necessitated the
student's absence from the institution.
(e) Cumulative length of absence. For purposes of paragraph
(c)(1)(ii) of this section, a student's cumulative length of absence
from an institution does not include any service--
(1) That is required, beyond five years, to complete an initial
period of obligated service;
(2) During which the student was unable to obtain orders releasing
the student from a period of service in the uniformed services before
the expiration of the five-year period and such inability was through
no fault of the student; or
(3) Performed by a member of the Armed Forces (including the
National Guard and Reserves) who is--
(i) Ordered to or retained on active duty under--
(A) 10 U.S.C. 688 (involuntary active duty by a military retiree);
(B) 10 U.S.C. 12301(a) (involuntary active duty in wartime);
(C) 10 U.S.C. 12301(g) (retention on active duty while in captive
status);
(D) 10 U.S.C. 12302 (involuntary active duty during a national
emergency for up to 24 months);
(E) 10 U.S.C. 12304 (involuntary active duty for an operational
mission for up to 270 days);
(F) 10 U.S.C. 12305 (involuntary retention on active duty of a
critical person during time of crisis or other specific conditions);
(G) 14 U.S.C. 331 (involuntary active duty by retired Coast Guard
officer);
(H) 14 U.S.C. 332 (voluntary active duty by retired Coast Guard
officer);
(I) 14 U.S.C. 359 (involuntary active duty by retired Coast Guard
enlisted member);
(J) 14 U.S.C. 360 (voluntary active duty by retired Coast Guard
enlisted member);
(K) 14 U.S.C. 367 (involuntary retention of Coast Guard enlisted
member on active duty); or
(L) 14 U.S.C. 712 (involuntary active duty by Coast Guard Reserve
member for natural or man-made disasters);
(ii) Ordered to or retained on active duty (other than for
training) under any provision of law because of a war or national
emergency declared by the President or the Congress, as determined by
the Secretary concerned;
(iii) Ordered to active duty (other than for training) in support,
as determined by the Secretary concerned, of an operational mission for
which personnel have been ordered to active duty under section 12304 of
title 10, United States Code;
(iv) Ordered to active duty in support, as determined by the
Secretary concerned, of a critical mission or requirement of the Armed
Forces (including the National Guard or Reserve); or
(v) Called into Federal service as a member of the National Guard
under chapter 15 of title 10, United States Code, or section 12406 of
title 10, United States Code (i.e., called to respond to an invasion,
danger of invasion, rebellion, danger of rebellion, insurrection, or
the inability of the President with regular forces to execute the laws
of the United States).
(f) Notification of intent to reenroll. A student who fails to
apply for readmission within the periods described in paragraph
(c)(1)(iii) of this section does not automatically forfeit eligibility
for readmission to the institution, but is subject to the institution's
established leave of absence policy and general practices.
(g) Documentation. (1) A student who submits an application for
readmission to an institution under paragraph (c)(1)(iii) of this
section shall provide to the institution documentation to establish
that--
(i) The student has not exceeded the service limitation in
paragraph (c)(1)(ii) of this section; and
(ii) The student's eligibility for readmission has not been
terminated due to an exception in paragraph (h) of this section.
(2)(i) Documents that satisfy the requirements of paragraph (g)(1)
of this section include, but are not limited to, the following:
(A) DD (Department of Defense) 214 Certificate of Release or
Discharge from Active Duty.
(B) Copy of duty orders prepared by the facility where the orders
were fulfilled carrying an endorsement indicating completion of the
described service.
(C) Letter from the commanding officer of a Personnel Support
Activity or someone of comparable authority.
(D) Certificate of completion from military training school.
(E) Discharge certificate showing character of service.
(F) Copy of extracts from payroll documents showing periods of
service.
(G) Letter from National Disaster Medical System (NDMS) Team Leader
or Administrative Officer verifying dates and times of NDMS training or
Federal activation.
(ii) The types of documents that are necessary to establish
eligibility for readmission will vary from case to case. Not all of
these documents are available or necessary in every instance to
establish readmission eligibility.
(3) An institution may not delay or attempt to avoid a readmission
of a student under this section by demanding documentation that does
not exist, or is not readily available, at the time of readmission.
(h) Termination of readmission eligibility. A student's eligibility
for readmission to an institution under this section by reason of such
student's service in the uniformed services terminates upon the
occurrence of any of the following events:
(1) A separation of such person from the Armed Forces (including
the National Guard and Reserves) with a dishonorable or bad conduct
discharge.
(2) A dismissal of a commissioned officer permitted under section
1161(a) of title 10, United States Code by sentence of a general court-
martial; in commutation of a sentence of a general court-martial; or,
in time of war, by order of the President.
(3) A dropping of a commissioned officer from the rolls pursuant to
section 1161(b) of title 10, United States Code due to absence without
authority for at least three months; separation by reason of a sentence
to confinement adjudged by a court-martial; or, a sentence to
confinement in a Federal or State penitentiary or correctional
institution.
(Approved by the Office of Management and Budget under control
number 1845-NEW1)
(Authority: 20 U.S.C. 1088, et seq.)
0
12. Section 668.23 is amended by revising paragraph (d)(4) to read as
follows:
Sec. 668.23 Compliance audits and audited financial statements.
* * * * *
(d) * * *
(4) Disclosure of Title IV, HEA program revenue. A proprietary
institution must disclose in a footnote to its financial statement
audit the percentage of its revenues derived from the Title IV, HEA
program funds that the institution received during the fiscal year
covered by that audit. The revenue percentage must be calculated in
[[Page 55937]]
accordance with Sec. 668.28. The institution must also report in the
footnote the dollar amount of the numerator and denominator of its 90/
10 ratio as well as the individual revenue amounts identified in
section 2 of appendix C to subpart B of part 668.
* * * * *
0
13. Section 668.28 is added to subpart B of part 668 to read as
follows:
Sec. 668.28 Non-title IV revenue (90/10).
(a) General. (1) Calculating the revenue percentage. A proprietary
institution meets the requirement in Sec. 668.14(b)(16) that at least
10 percent of its revenue is derived from sources other than Title IV,
HEA program funds by using the formula in appendix C of this subpart to
calculate its revenue percentage for its latest complete fiscal year.
(2) Cash basis accounting. Except for institutional loans made to
students under paragraph (a)(5)(i) of this section, the institution
must use the cash basis of accounting in calculating its revenue
percentage.
(3) Revenue generated from programs and activities. The institution
must consider as revenue only those funds it generates from--
(i) Tuition, fees, and other institutional charges for students
enrolled in eligible programs as defined in Sec. 668.8;
(ii) Activities conducted by the institution that are necessary for
the education and training of its students provided those activities
are--
(A) Conducted on campus or at a facility under the institution's
control;
(B) Performed under the supervision of a member of the
institution's faculty; and
(C) Required to be performed by all students in a specific
educational program at the institution; and
(iii) Funds paid by a student, or on behalf of a student by a party
other than the institution, for an education or training program that
is not eligible under Sec. 668.8 if the program--
(A) Is approved or licensed by the appropriate State agency;
(B) Is accredited by an accrediting agency recognized by the
Secretary under 34 CFR part 602;
(C) Provides an industry-recognized credential or certification, or
prepares students to take an examination for an industry-recognized
credential or certification issued by an independent third party;
(D) Provides training needed for students to maintain State
licensing requirements; or
(E) Provides training needed for students to meet additional
licensing requirements for specialized training for practitioners that
already meet the general licensing requirements in that field.
(4) Application of funds. The institution must presume that any
Title IV, HEA program funds it disburses, or delivers, to or on behalf
of a student will be used to pay the student's tuition, fees, or
institutional charges, regardless of whether the institution credits
the funds to the student's account or pays the funds directly to the
student, except to the extent that the student's tuition, fees, or
other charges are satisfied by--
(i) Grant funds provided by non-Federal public agencies or private
sources independent of the institution;
(ii) Funds provided under a contractual arrangement with a Federal,
State, or local government agency for the purpose of providing job
training to low-income individuals who need that training;
(iii) Funds used by a student from a savings plan for educational
expenses established by or on behalf of the student if the saving plan
qualifies for special tax treatment under the Internal Revenue Code of
1986; or
(iv) Institutional scholarships that meet the requirements in
paragraph (a)(5)(iv) of this section.
(5) Revenue generated from institutional aid. The institution must
include the following institutional aid as revenue:
(i) For loans made to students and credited in full to the
students' accounts at the institution on or after July 1, 2008 and
prior to July 1, 2012, include as revenue the net present value of the
loans made to students during the fiscal year, as calculated under
paragraph (b) of this section, if the loans--
(A) Are bona fide as evidenced by standalone repayment agreements
between the students and the institution that are enforceable
promissory notes;
(B) Are issued at intervals related to the institution's enrollment
periods;
(C) Are subject to regular loan repayments and collections by the
institution; and
(D) Are separate from the enrollment contracts signed by the
students.
(ii) For loans made to students before July 1, 2008, include as
revenue only the amount of payments made on those loans that the
institution received during the fiscal year.
(iii) For loans made to students on or after July 1, 2012, include
as revenue only the amount of payments made on those loans that the
institution received during the fiscal year.
(iv) For scholarships provided by the institution in the form of
monetary aid or tuition discount and based on the academic achievement
or financial need of its students, include as revenue the amount
disbursed to students during the fiscal year. The scholarships must be
disbursed from an established restricted account and only to the extent
that the funds in that account represent designated funds from an
outside source or income earned on those funds.
(6) Revenue generated from loan funds in excess of loan limits
prior to the Ensuring Continued Access to Student Loans Act of 2008
(ECASLA). For each student who receives an unsubsidized loan under the
FFEL or Direct Loan programs on or after July 1, 2008 and prior to July
1, 2011, the amount of the loan disbursement for a payment period that
exceeds the disbursement for which the student would have been eligible
for that payment period under the loan limit in effect on the day prior
to enactment of the ECASLA is included and deemed to be revenue from a
source other than Title IV, HEA program funds but only to the extent
that the excess amount pays for tuition, fees, or institutional charges
remaining on the student's account after other Title IV, HEA program
funds are applied.
(7) Funds excluded from revenues. For the fiscal year, the
institution does not include--
(i) The amount of Federal Work Study (FWS) wages paid directly to
the student. However, if the institution credits the student's account
with FWS funds, those funds are included as revenue;
(ii) The amount of funds received by the institution from a State
under the LEAP, SLEAP, or GAP programs;
(iii) The amount of institutional funds used to match Title IV, HEA
program funds;
(iv) The amount of Title IV, HEA program funds refunded or returned
under Sec. 668.22. If any funds from the loan disbursement used in the
return calculation under Sec. 668.22 were counted as non-title IV
revenue under paragraph (a)(6) of this section, the amount of Title IV,
HEA program funds refunded or returned under Sec. 668.22 is considered
to consist of pre-ECASLA loan amounts and loan amounts in excess of the
loan limits prior to ECASLA in the same proportion to the loan
disbursement; or
(v) The amount the student is charged for books, supplies, and
equipment unless the institution includes that amount as tuition, fees,
or other institutional charges.
(b) Net present value (NPV). (1) As illustrated in appendix C of
this subpart, an institution calculates the NPV of the loans it made
under paragraph (a)(5)(i) of this section by--
[[Page 55938]]
(i) Using the formula, NPV = sum of the discounted cash flows
Rt/(1+i)t, where--
(A) The variable ``i'' is the discount rate. For purposes of this
section, an institution must use the most recent annual inflation rate
as the discount rate;
(B) The variable ``t'' is time or period of the cash flow, in
years, from the time the loan entered repayment; and
(C) The variable ``Rt'' is the net cash flow at time or
period t; and
(ii) Applying the NPV formula to the loans made during the fiscal
year by--
(A) If the loans have substantially the same repayment period,
using that repayment period for the range of values of variable ``t'';
or
(B) Grouping the loans by repayment period and using the repayment
period for each group for the range of values of variable ``t''; and
(C) For each group of loans, as applicable, multiplying the total
annual payments due on the loans by the institution's loan collection
rate (e.g., the total amount of payments collected divided by the total
amount of payments due). The resulting amount is used for variable
``R'' in each period ``t'', for each group of loans that a NPV is
calculated.
(2) Instead of performing the calculations in paragraph (b)(1) of
this section, using 50 percent of the total amount of loans that the
institution made during the fiscal year as the NPV. However, if the
institution chooses to use this 50 percent calculation, the institution
may not sell any of these loans until they have been in repayment for
at least two years.
(c) Sanctions. If an institution does not derive at least 10
percent of its revenue from sources other than Title IV, HEA program
funds--
(1) For two consecutive fiscal years, it loses its eligibility to
participate in the Title IV, HEA programs for at least two fiscal
years. To regain eligibility, the institution must demonstrate that it
complied with the State licensure and accreditation requirements under
34 CFR 600.5(a)(4) and (a)(6), and the financial responsibility
requirements under subpart L of this part, for a minimum of two fiscal
years after the fiscal year it became ineligible; or
(2) For any fiscal year, it becomes provisionally certified under
Sec. 668.13(c)(1)(ii) for the two fiscal years after the fiscal year
it failed to satisfy the revenue requirement. However, the
institution's provisional certification terminates on--
(i) The expiration date of the institution's program participation
agreement that was in effect on the date the Secretary determined the
institution failed this requirement; or
(ii) The date the institution loses its eligibility to participate
under paragraph (c)(1) of this section; and
(3) It must notify the Secretary no later than 45 days after the
end of its fiscal year that it failed to meet this requirement.
(Approved by Office of Management and Budget under control number
1845-NEW2)
(Authority: 20 U.S.C. 1085, 1088, 1091, 1092, 1094, 1099a-3, 1099c,
1141)
0
14. Appendix C is added to subpart B of part 668 to read as follows:
BILLING CODE 4000-01-P
[[Page 55939]]
[GRAPHIC] [TIFF OMITTED] TR29OC09.006
[[Page 55940]]
[GRAPHIC] [TIFF OMITTED] TR29OC09.007
[[Page 55941]]
[GRAPHIC] [TIFF OMITTED] TR29OC09.008
[[Page 55942]]
[GRAPHIC] [TIFF OMITTED] TR29OC09.009
BILLING CODE 4000-01-C
0
15. Section 668.32 is amended by:
0
A. Revising the introductory text.
0
B. In paragraph (a)(1)(iii), adding the word ``and'' after the
punctuation ``;''.
0
C. In paragraph (a)(2), removing the punctuation ``;'' and adding, in
its place, the punctuation ``.''.
0
D. In paragraph (b), removing the punctuation ``;'' and adding, in its
place, the punctuation ``.''.
0
E. In paragraph (c)(4)(ii), removing the punctuation ``;'' and adding,
in its place, the punctuation ``.''.
0
F. In paragraph (d), removing the punctuation ``;'' and adding, in its
place, the punctuation ``.''.
0
G. In paragraph (e)(4)(ii), removing the punctuation ``;'' and adding,
in its place, the punctuation ``.''.
0
H. In paragraph (f), removing the punctuation ``;'' and adding, in its
place, the punctuation ``.''.
0
I. In paragraph (g)(4), removing the punctuation ``;'' at the end of
the paragraph and adding, in its place, the punctuation ``.''.
0
J. In paragraph (h), removing the punctuation ``;'' and adding, in its
place, the punctuation ``.''.
0
K. In paragraph (i), removing the punctuation ``;'' and adding, in its
place, the punctuation ``.''.
0
L. In paragraph (j), removing the punctuation ``;'' and adding, in its
place, the punctuation ``.''.
0
M. In paragraph (k)(9), removing the word ``; and'' and adding, in its
place, the punctuation ``.''.
0
N. In paragraph (l), removing the word ``; and'' and adding, in its
place, the punctuation ``.''.
0
O. Adding paragraph (n).
The revision and addition read as follows:
Sec. 668.32 Student eligibility--general.
A student is eligible to receive Title IV, HEA program assistance
if the student either meets all of the requirements in paragraphs (a)
through (m) of this section or meets the requirement in paragraph (n)
of this section as follows:
* * * * *
(n) Is enrolled in a comprehensive transition and postsecondary
program under subpart O of this part and meets the student eligibility
criteria in that subpart.
* * * * *
0
16. Section 668.41 is amended by:
0
A. In paragraph (a), adding, in alphabetical order, the definition of
on-campus student housing facility.
0
B. Revising paragraph (d).
0
C. Revising paragraph (e).
0
D. In paragraph (g)(1)(i), removing the words ``on request''.
0
E. In the OMB control number parenthetical at the end of the section,
removing the words, ``and 1845-0010''.
The addition and revisions read as follows:
[[Page 55943]]
Sec. 668.41 Reporting and disclosure of information.
(a) * * *
On-campus student housing facility: A dormitory or other
residential facility for students that is located on an institution's
campus, as defined in Sec. 668.46(a).
* * * * *
(d) General disclosures for enrolled or prospective students. An
institution must make available to any enrolled student or prospective
student through appropriate publications, mailings or electronic media,
information concerning--
(1) Financial assistance available to students enrolled in the
institution (pursuant to Sec. 668.42).
(2) The institution (pursuant to Sec. 668.43).
(3) The institution's retention rate as reported to the Integrated
Postsecondary Education Data System (IPEDS). In the case of a request
from a prospective student, the information must be made available
prior to the student's enrolling or entering into any financial
obligation with the institution.
(4) The institution's completion or graduation rate and, if
applicable, its transfer-out rate (pursuant to Sec. 668.45). In the
case of a request from a prospective student, the information must be
made available prior to the student's enrolling or entering into any
financial obligation with the institution.
(5) The placement of, and types of employment obtained by,
graduates of the institution's degree or certificate programs.
(i) The information provided in compliance with this paragraph may
be gathered from--
(A) The institution's placement rate for any program, if it
calculates such a rate;
(B) State data systems;
(C) Alumni or student satisfaction surveys; or
(D) Other relevant sources.
(ii) The institution must identify the source of the information
provided in compliance with this paragraph, as well as any time frames
and methodology associated with it.
(iii) The institution must disclose any placement rates it
calculates.
(6) The types of graduate and professional education in which
graduates of the institution's four-year degree programs enroll.
(i) The information provided in compliance with this paragraph may
be gathered from--
(A) State data systems;
(B) Alumni or student satisfaction surveys; or
(C) Other relevant sources.
(ii) The institution must identify the source of the information
provided in compliance with this paragraph, as well as any time frames
and methodology associated with it.
(e) Annual security report and annual fire safety report. (1)
Enrolled students and current employees--annual security report and
annual fire safety report. By October 1 of each year, an institution
must distribute to all enrolled students and current employees its
annual security report described in Sec. 668.46(b), and, if the
institution maintains an on-campus student housing facility, its annual
fire safety report described in Sec. 668.49(b), through appropriate
publications and mailings, including--
(i) Direct mailing to each individual through the U.S. Postal
Service, campus mail, or electronic mail;
(ii) A publication or publications provided directly to each
individual; or
(iii) Posting on an Internet Web site or an Intranet Web site,
subject to paragraph (e)(2) and (3) of this section.
(2) Enrolled students--annual security report and annual fire
safety report. If an institution chooses to distribute either its
annual security report or annual fire safety report to enrolled
students by posting the disclosure or disclosures on an Internet Web
site or an Intranet Web site, the institution must comply with the
requirements of paragraph (c)(2) of this section.
(3) Current employees--annual security report and annual fire
safety report. If an institution chooses to distribute either its
annual security report or annual fire safety report to current
employees by posting the disclosure or disclosures on an Internet Web
site or an Intranet Web site, the institution must, by October 1 of
each year, distribute to all current employees a notice that includes a
statement of the report's availability, the exact electronic address at
which the report is posted, a brief description of the report's
contents, and a statement that the institution will provide a paper
copy of the report upon request.
(4) Prospective students and prospective employees--annual security
report and annual fire safety report. For each of the reports, the
institution must provide a notice to prospective students and
prospective employees that includes a statement of the report's
availability, a description of its contents, and an opportunity to
request a copy. An institution must provide its annual security report
and annual fire safety report, upon request, to a prospective student
or prospective employee. If the institution chooses to provide either
its annual security report or annual fire safety report to prospective
students and prospective employees by posting the disclosure on an
Internet Web site, the notice described in this paragraph must include
the exact electronic address at which the report is posted, a brief
description of the report, and a statement that the institution will
provide a paper copy of the report upon request.
(5) Submission to the Secretary--annual security report and annual
fire safety report. Each year, by the date and in a form specified by
the Secretary, an institution must submit the statistics required by
Sec. Sec. 668.46(c) and 668.49(c) to the Secretary.
(6) Publication of the annual fire safety report. An institution
may publish its annual fire safety report concurrently with its annual
security report only if the title of the report clearly states that the
report contains both the annual security report and the annual fire
safety report. If an institution chooses to publish the annual fire
safety report separately from the annual security report, it must
include information in each of the two reports about how to directly
access the other report.
* * * * *
0
17. Section 668.43 is amended by:
0
A. In the introductory text of paragraph (a), removing the words ``upon
request''.
0
B. In paragraph (a)(5)(ii), removing the word ``and'' that appears
after the punctuation ``;''.
0
C. In paragraph (a)(5)(iii), adding the word ``and'' after the
punctuation ``;''.
0
D. Adding paragraph (a)(5)(iv).
0
E. Revising paragraph (a)(7).
0
F. In paragraph (a)(8), removing the word ``and'' that appears after
the punctuation ``;''.
0
G. In paragraph (a)(9), removing the punctuation ``.'' and adding, in
its place, the punctuation ``;''.
0
H. Adding paragraph (a)(10).
0
I. Adding paragraph (a)(11).
0
J. In paragraph (b), removing the words ``, upon request,''.
The additions and revision read as follows:
Sec. 668.43 Institutional information.
(a) * * *
(5) * * *
(iv) Any plans by the institution for improving the academic
program of the institution, upon a determination by the institution
that such a plan exists;
* * * * *
(7) A description of the services and facilities available to
students with
[[Page 55944]]
disabilities, including students with intellectual disabilities as
defined in subpart O of this part;
* * * * *
(10) Institutional policies and sanctions related to copyright
infringement, including--
(i) A statement that explicitly informs its students that
unauthorized distribution of copyrighted material, including
unauthorized peer-to-peer file sharing, may subject the students to
civil and criminal liabilities;
(ii) A summary of the penalties for violation of Federal copyright
laws; and
(iii) A description of the institution's policies with respect to
unauthorized peer-to-peer file sharing, including disciplinary actions
that are taken against students who engage in illegal downloading or
unauthorized distribution of copyrighted materials using the
institution's information technology system; and
(11) A description of the transfer of credit policies established
by the institution which must include a statement of the institution's
current transfer of credit policies that includes, at a minimum--
(i) Any established criteria the institution uses regarding the
transfer of credit earned at another institution; and
(ii) A list of institutions with which the institution has
established an articulation agreement.
* * * * *
0
18. Section 668.45 is revised to read as follows:
Sec. 668.45 Information on completion or graduation rates.
(a)(1) An institution annually must prepare the completion or
graduation rate of its certificate- or degree-seeking, first-time,
full-time undergraduate students, as provided in paragraph (b) of this
section.
(2) An institution that determines that its mission includes
providing substantial preparation for students to enroll in another
eligible institution must prepare the transfer-out rate of its
certificate- or degree-seeking, first-time, full-time undergraduate
students, as provided in paragraph (c) of this section.
(3)(i) An institution that offers a predominant number of its
programs based on semesters, trimesters, or quarters must base its
completion or graduation rate, retention rate, and, if applicable,
transfer-out rate calculations, on the cohort of certificate- or
degree-seeking, first-time, full-time undergraduate students who enter
the institution during the fall term of each year.
(ii) An institution not covered by the provisions of paragraph
(a)(3)(i) of this section must base its completion or graduation rate,
retention rate, and, if applicable, transfer-out rate calculations, on
the cohort of certificate- or degree-seeking, first-time, full-time
undergraduate students who enter the institution between September 1 of
one year and August 31 of the following year.
(4)(i) An institution covered by the provisions of paragraph
(a)(3)(i) of this section must count as an entering student a first-
time undergraduate student who is enrolled as of October 15, the end of
the institution's drop-add period, or another official reporting date
as defined in Sec. 668.41(a).
(ii) An institution covered by paragraph (a)(3)(ii) of this section
must count as an entering student a first-time undergraduate student
who is enrolled for at least--
(A) 15 days, in a program of up to, and including, one year in
length; or
(B) 30 days, in a program of greater than one year in length.
(5) An institution must make available its completion or graduation
rate and, if applicable, transfer-out rate, no later than the July 1
immediately following the 12-month period ending August 31 during which
150 percent of the normal time for completion or graduation has elapsed
for all of the students in the group on which the institution bases its
completion or graduation rate and, if applicable, transfer-out rate
calculations.
(6)(i) Completion or graduation rate information must be
disaggregated by gender, by each major racial and ethnic subgroup (as
defined in IPEDS), by recipients of a Federal Pell Grant, by recipients
of a Federal Family Education Loan or a Federal Direct Loan (other than
an Unsubsidized Stafford Loan made under the Federal Family Education
Loan Program or a Federal Direct Unsubsidized Stafford Loan) who did
not receive a Federal Pell Grant, and by recipients of neither a
Federal Pell Grant nor a Federal Family Education Loan or a Federal
Direct Loan (other than an Unsubsidized Stafford Loan made under the
Federal Family Education Loan Program or a Federal Direct Unsubsidized
Loan) if the number of students in such group or with such status is
sufficient to yield statistically reliable information and reporting
will not reveal personally identifiable information about an individual
student. If such number is not sufficient for such purpose, i.e., is
too small to be meaningful, then the institution shall note that the
institution enrolled too few of such students to so disclose or report
with confidence and confidentiality.
(ii) With respect to the requirement in paragraph (a)(6)(i) of this
section to disaggregate the completion or graduation rate information
by the receipt or nonreceipt of Federal student aid, students shall be
considered to have received the aid in question only if they received
such aid for the period specified in paragraph (a)(3) of this section.
(iii) The requirement in paragraph (a)(6)(i) of this section shall
not apply to two-year, degree-granting institutions of higher education
until academic year 2011-2012.
(b) In calculating the completion or graduation rate under
paragraph (a)(1) of this section, an institution must count as
completed or graduated--
(1) Students who have completed or graduated by the end of the 12-
month period ending August 31 during which 150 percent of the normal
time for completion or graduation from their program has lapsed; and
(2) Students who have completed a program described in Sec.
668.8(b)(1)(ii), or an equivalent program, by the end of the 12-month
period ending August 31 during which 150 percent of normal time for
completion from that program has lapsed.
(c) In calculating the transfer-out rate under paragraph (a)(2) of
this section, an institution must count as transfers-out students who
by the end of the 12-month period ending August 31 during which 150
percent of the normal time for completion or graduation from the
program in which they were enrolled has lapsed, have not completed or
graduated but have subsequently enrolled in any program of an eligible
institution for which its program provided substantial preparation.
(d) For the purpose of calculating a completion or graduation rate
and a transfer-out rate, an institution may--
(1) Exclude students who--
(i) Have left school to serve in the Armed Forces;
(ii) Have left school to serve on official church missions;
(iii) Have left school to serve with a foreign aid service of the
Federal Government, such as the Peace Corps;
(iv) Are totally and permanently disabled; or
(v) Are deceased.
(2) In cases where the students described in paragraphs (d)(1)(i)
through (iii) of this section represent 20 percent or more of the
certificate- or degree-seeking, full-time, undergraduate students at
the institution, recalculate the completion or graduation rates of
those students by adding to the 150
[[Page 55945]]
percent time-frame they normally have to complete or graduate, as
described in paragraph (b) of this section, the time period the
students were not enrolled due to their service in the Armed Forces, on
official church missions, or with a recognized foreign aid service of
the Federal Government.
(e)(1) The Secretary grants a waiver of the requirements of this
section dealing with completion and graduation rate data to any
institution that is a member of an athletic association or conference
that has voluntarily published completion or graduation rate data, or
has agreed to publish data, that the Secretary determines are
substantially comparable to the data required by this section.
(2) An institution that receives a waiver of the requirements of
this section must still comply with the requirements of Sec.
668.41(d)(3) and (f).
(3) An institution, or athletic association or conference applying
on behalf of an institution, that seeks a waiver under paragraph (e)(1)
of this section must submit a written application to the Secretary that
explains why it believes the data the athletic association or
conference publishes are accurate and substantially comparable to the
information required by this section.
(f) In addition to calculating the completion or graduation rate
required by paragraph (a)(1) of this section, an institution may, but
is not required to--
(1) Calculate a completion or graduation rate for students who
transfer into the institution;
(2) Calculate a completion or graduation rate for students
described in paragraphs (d)(1)(i) through (iv) of this section; and
(3) Calculate a transfer-out rate as specified in paragraph (c) of
this section, if the institution determines that its mission does not
include providing substantial preparation for its students to enroll in
another eligible institution.
(Approved by the Office of Management and Budget under control
number 1845-0004)
(Authority: 20 U.S.C. 1092)
0
19. Section 668.46 is amended by:
0
A. In paragraph (a), adding, in alphabetical order, a definition of
test.
0
B. Adding paragraphs (b)(13) and (b)(14).
0
C. Revising paragraph (c)(3).
0
D. Revising the heading for paragraph (e).
0
E. Adding paragraph (e)(3).
0
F. Adding paragraph (g).
0
G. Adding paragraph (h).
The additions and revisions read as follows:
Sec. 668.46 Institutional security policies and crime statistics.
(a) * * *
Test: Regularly scheduled drills, exercises, and appropriate
follow-through activities, designed for assessment and evaluation of
emergency plans and capabilities.
* * * * *
(b) * * *
(13) Beginning with the annual security report distributed by
October 1, 2010, a statement of policy regarding emergency response and
evacuation procedures, as described in paragraph (g) of this section.
(14) Beginning with the annual security report distributed by
October 1, 2010, a statement of policy regarding missing student
notification procedures, as described in paragraph (h) of this section.
(c) * * *
(3) Reported crimes if a hate crime. An institution must report, by
category of prejudice, the following crimes reported to local police
agencies or to a campus security authority that manifest evidence that
the victim was intentionally selected because of the victim's actual or
perceived race, gender, religion, sexual orientation, ethnicity, or
disability:
(i) Any crime it reports pursuant to paragraph (c)(1)(i) through
(vii) of this section.
(ii) The crimes of larceny-theft, simple assault, intimidation, and
destruction/damage/vandalism of property.
(iii) Any other crime involving bodily injury.
* * * * *
(e) Timely warning and emergency notification. * * *
(3) If there is an immediate threat to the health or safety of
students or employees occurring on campus, as described in paragraph
(g)(1) of this section, an institution must follow its emergency
notification procedures. An institution that follows its emergency
notification procedures is not required to issue a timely warning based
on the same circumstances; however, the institution must provide
adequate follow-up information to the community as needed.
* * * * *
(g) Emergency response and evacuation procedures. An institution
must include a statement of policy regarding its emergency response and
evacuation procedures in the annual security report. This statement
must include--
(1) The procedures the institution will use to immediately notify
the campus community upon the confirmation of a significant emergency
or dangerous situation involving an immediate threat to the health or
safety of students or employees occurring on the campus;
(2) A description of the process the institution will use to--
(i) Confirm that there is a significant emergency or dangerous
situation as described in paragraph (g)(1) of this section;
(ii) Determine the appropriate segment or segments of the campus
community to receive a notification;
(iii) Determine the content of the notification; and
(iv) Initiate the notification system.
(3) A statement that the institution will, without delay, and
taking into account the safety of the community, determine the content
of the notification and initiate the notification system, unless
issuing a notification will, in the professional judgment of
responsible authorities, compromise efforts to assist a victim or to
contain, respond to, or otherwise mitigate the emergency;
(4) A list of the titles of the person or persons or organization
or organizations responsible for carrying out the actions described in
paragraph (g)(2) of this section;
(5) The institution's procedures for disseminating emergency
information to the larger community; and
(6) The institution's procedures to test the emergency response and
evacuation procedures on at least an annual basis, including--
(i) Tests that may be announced or unannounced;
(ii) Publicizing its emergency response and evacuation procedures
in conjunction with at least one test per calendar year; and
(iii) Documenting, for each test, a description of the exercise,
the date, time, and whether it was announced or unannounced.
(h) Missing student notification policies and procedures. (1) An
institution that provides any on-campus student housing facility must
include a statement of policy regarding missing student notification
procedures for students who reside in on-campus student housing
facilities in its annual security report. This statement must--
(i) Indicate a list of titles of the persons or organizations to
which students, employees, or other individuals should report that a
student has been missing for 24 hours;
(ii) Require that any missing student report must be referred
immediately to the institution's police or campus security department,
or, in the absence of an institutional police or campus security
department, to the local law
[[Page 55946]]
enforcement agency that has jurisdiction in the area;
(iii) Contain an option for each student to identify a contact
person or persons whom the institution shall notify within 24 hours of
the determination that the student is missing, if the student has been
determined missing by the institutional police or campus security
department, or the local law enforcement agency;
(iv) Advise students that their contact information will be
registered confidentially, that this information will be accessible
only to authorized campus officials, and that it may not be disclosed,
except to law enforcement personnel in furtherance of a missing person
investigation;
(v) Advise students that if they are under 18 years of age and not
emancipated, the institution must notify a custodial parent or guardian
within 24 hours of the determination that the student is missing, in
addition to notifying any additional contact person designated by the
student; and
(vi) Advise students that, the institution will notify the local
law enforcement agency within 24 hours of the determination that the
student is missing, unless the local law enforcement agency was the
entity that made the determination that the student is missing.
(2) The procedures that the institution must follow when a student
who resides in an on-campus student housing facility is determined to
have been missing for 24 hours include--
(i) If the student has designated a contact person, notifying that
contact person within 24 hours that the student is missing;
(ii) If the student is under 18 years of age and is not
emancipated, notifying the student's custodial parent or guardian and
any other designated contact person within 24 hours that the student is
missing; and
(iii) Regardless of whether the student has identified a contact
person, is above the age of 18, or is an emancipated minor, informing
the local law enforcement agency that has jurisdiction in the area
within 24 hours that the student is missing.
* * * * *
0
20. Section 668.49 is added to subpart D of part 668 to read as
follows:
Sec. 668.49 Institutional fire safety policies and fire statistics.
(a) Additional definitions that apply to this section.
Cause of fire: The factor or factors that give rise to a fire. The
causal factor may be, but is not limited to, the result of an
intentional or unintentional action, mechanical failure, or act of
nature.
Fire: Any instance of open flame or other burning in a place not
intended to contain the burning or in an uncontrolled manner.
Fire drill: A supervised practice of a mandatory evacuation of a
building for a fire.
Fire-related injury: Any instance in which a person is injured as a
result of a fire, including an injury sustained from a natural or
accidental cause, while involved in fire control, attempting rescue, or
escaping from the dangers of the fire. The term ``person'' may include
students, employees, visitors, firefighters, or any other individuals.
Fire-related death: Any instance in which a person--
(1) Is killed as a result of a fire, including death resulting from
a natural or accidental cause while involved in fire control,
attempting rescue, or escaping from the dangers of a fire; or
(2) Dies within one year of injuries sustained as a result of the
fire.
Fire safety system: Any mechanism or system related to the
detection of a fire, the warning resulting from a fire, or the control
of a fire. This may include sprinkler systems or other fire
extinguishing systems, fire detection devices, stand-alone smoke
alarms, devices that alert one to the presence of a fire, such as
horns, bells, or strobe lights; smoke-control and reduction mechanisms;
and fire doors and walls that reduce the spread of a fire.
Value of property damage: The estimated value of the loss of the
structure and contents, in terms of the cost of replacement in like
kind and quantity. This estimate should include contents damaged by
fire, and related damages caused by smoke, water, and overhaul;
however, it does not include indirect loss, such as business
interruption.
(b) Annual fire safety report. Beginning by October 1, 2010, an
institution that maintains any on-campus student housing facility must
prepare an annual fire safety report that contains, at a minimum, the
following information:
(1) The fire statistics described in paragraph (c) of this section.
(2) A description of each on-campus student housing facility fire
safety system.
(3) The number of fire drills held during the previous calendar
year.
(4) The institution's policies or rules on portable electrical
appliances, smoking, and open flames in a student housing facility.
(5) The institution's procedures for student housing evacuation in
the case of a fire.
(6) The policies regarding fire safety education and training
programs provided to the students and employees. In these policies, the
institution must describe the procedures that students and employees
should follow in the case of a fire.
(7) For purposes of including a fire in the statistics in the
annual fire safety report, a list of the titles of each person or
organization to which students and employees should report that a fire
occurred.
(8) Plans for future improvements in fire safety, if determined
necessary by the institution.
(c) Fire statistics. (1) An institution must report statistics for
each on-campus student housing facility, for the three most recent
calendar years for which data are available, concerning--
(i) The number of fires and the cause of each fire;
(ii) The number of persons who received fire-related injuries that
resulted in treatment at a medical facility, including at an on-campus
health center;
(iii) The number of deaths related to a fire; and
(iv) The value of property damage caused by a fire.
(2) An institution is required to submit a copy of the fire
statistics in paragraph (c)(1) of this section to the Secretary on an
annual basis.
(d) Fire log. (1) An institution that maintains on-campus student
housing facilities must maintain a written, easily understood fire log
that records, by the date that the fire was reported, any fire that
occurred in an on-campus student housing facility. This log must
include the nature, date, time, and general location of each fire.
(2) An institution must make an entry or an addition to an entry to
the log within two business days, as defined under Sec. 668.46(a), of
the receipt of the information.
(3) An institution must make the fire log for the most recent 60-
day period open to public inspection during normal business hours. The
institution must make any portion of the log older than 60 days
available within two business days of a request for public inspection.
(4) An institution must make an annual report to the campus
community on the fires recorded in the fire log. This requirement may
be satisfied by the annual fire safety report described in paragraph
(b) of this section.
(Approved by the Office of Management and Budget under control
number 1845-NEW3)
[[Page 55947]]
(Authority: 20 U.S.C. 1092)
0
21. Appendix A to subpart D of part 668 is amended by:
0
A. Revising the introductory text.
0
B. Under the heading, ``Crime Definitions From the Uniform Crime
Reporting Handbook,'' by:
0
i. Removing the definition of Weapon Law Violations;
0
ii. Adding a new definition of Weapons: Carrying, Possessing, Etc.; and
0
iii. Revising the definitions of Drug Abuse Violations and Liquor Law
Violations.
0
C. Adding a heading at the end of the appendix, ``Definitions From the
Hate Crime Data Collection Guidelines of the Uniform Crime Reporting
Handbook'' followed by definitions for larceny-theft (except motor
vehicle theft), simple assault, intimidation, and destruction/damage/
vandalism of property.
The revisions and additions read as follows: Appendix A to Subpart
D of Part 668--Crime Definitions in Accordance with the Federal Bureau
of Investigation's Uniform Crime Reporting Program
The following definitions are to be used for reporting the crimes
listed in Sec. 668.46, in accordance with the Federal Bureau of
Investigation's Uniform Crime Reporting Program. The definitions for
murder; robbery; aggravated assault; burglary; motor vehicle theft;
weapons: carrying, possessing, etc.; law violations; drug abuse
violations; and liquor law violations are excerpted from the Uniform
Crime Reporting Handbook. The definitions of forcible rape and
nonforcible sex offenses are excerpted from the National Incident-Based
Reporting System Edition of the Uniform Crime Reporting Handbook. The
definitions of larceny-theft (except motor vehicle theft), simple
assault, intimidation, and destruction/damage/vandalism of property are
excerpted from the Hate Crime Data Collection Guidelines of the Uniform
Crime Reporting Handbook.
* * * * *
Crime Definitions From the Uniform Crime Reporting Handbook
* * * * *
Weapons: Carrying, Possessing, Etc.
The violation of laws or ordinances prohibiting the manufacture,
sale, purchase, transportation, possession, concealment, or use of
firearms, cutting instruments, explosives, incendiary devices, or other
deadly weapons.
Drug Abuse Violations
The violation of laws prohibiting the production, distribution,
and/or use of certain controlled substances and the equipment or
devices utilized in their preparation and/or use. The unlawful
cultivation, manufacture, distribution, sale, purchase, use,
possession, transportation, or importation of any controlled drug or
narcotic substance. Arrests for violations of state and local laws,
specifically those relating to the unlawful possession, sale, use,
growing, manufacturing, and making of narcotic drugs.
Liquor Law Violations
The violation of state or local laws or ordinances prohibiting the
manufacture, sale, purchase, transportation, possession, or use of
alcoholic beverages, not including driving under the influence and
drunkenness.
* * * * *
Definitions From the Hate Crime Data Collection Guidelines of the
Uniform Crime Reporting Handbook
Larceny-Theft (Except Motor Vehicle Theft)
The unlawful taking, carrying, leading, or riding away of property
from the possession or constructive possession of another. Attempted
larcenies are included. Embezzlement, confidence games, forgery,
worthless checks, etc., are excluded.
Simple Assault
An unlawful physical attack by one person upon another where
neither the offender displays a weapon, nor the victim suffers obvious
severe or aggravated bodily injury involving apparent broken bones,
loss of teeth, possible internal injury, severe laceration, or loss of
consciousness.
Intimidation
To unlawfully place another person in reasonable fear of bodily
harm through the use of threatening words and/or other conduct, but
without displaying a weapon or subjecting the victim to actual physical
attack.
Destruction/Damage/Vandalism of Property
To willfully or maliciously destroy, damage, deface, or otherwise
injure real or personal property without the consent of the owner or
the person having custody or control of it.
0
22. Section 668.161 is amended by revising the section heading and
paragraph (a)(4) to read as follows:
Sec. 668.161 Scope and purpose (cash management rules).
(a) * * *
(4) An institution must follow the disbursement procedures in 34
CFR 675.16 for paying a student his or her wages under the FWS Program
instead of the disbursement procedures in Sec. Sec. 668.164(a), (b),
and (d) through (g), and 668.165.
* * * * *
Sec. 668.184 [Amended]
0
23. Section 668.184(a)(1) is amended by removing the word ``If'' and
adding, in its place, the words ``Except as provided under 34 CFR
600.32(d), if''.
0
24. Subpart O, consisting of Sec. Sec. 668.230 through 668.233, is
added to part 668 to read as follows:
Subpart O--Financial Assistance for Students With Intellectual
Disabilities
Sec.
668.230 Scope and purpose.
668.231 Definitions.
668.232 Program eligibility.
668.233 Student eligibility.
Subpart O--Financial Assistance for Students With Intellectual
Disabilities
Sec. 668.230 Scope and purpose.
This subpart establishes regulations that apply to an institution
that offers comprehensive transition and postsecondary programs to
students with intellectual disabilities. Students enrolled in these
programs are eligible for Federal financial assistance under the
Federal Pell Grant, FSEOG, and FWS programs. Except for provisions
related to needs analysis, the Secretary may waive any Title IV, HEA
program requirement related to the Federal Pell Grant, FSEOG, and FWS
programs or institutional eligibility, to ensure that students with
intellectual disabilities remain eligible for funds under these
assistance programs. However, unless provided in this subpart or
subsequently waived by the Secretary, students with intellectual
disabilities and institutions that offer comprehensive transition and
postsecondary programs are subject to the same regulations and
procedures that otherwise apply to Title IV, HEA program participants.
(Authority: 20 U.S.C. 1091)
Sec. 668.231 Definitions.
The following definitions apply to this subpart:
(a) Comprehensive transition and postsecondary program means a
degree, certificate, nondegree, or noncertificate program that--
(1) Is offered by a participating institution;
(2) Is delivered to students physically attending the institution;
(3) Is designed to support students with intellectual disabilities
who are seeking to continue academic, career
[[Page 55948]]
and technical, and independent living instruction at an institution of
higher education in order to prepare for gainful employment;
(4) Includes an advising and curriculum structure;
(5) Requires students with intellectual disabilities to have at
least one-half of their participation in the program, as determined by
the institution, focus on academic components through one or more of
the following activities:
(i) Taking credit-bearing courses with students without
disabilities.
(ii) Auditing or otherwise participating in courses with students
without disabilities for which the student does not receive regular
academic credit.
(iii) Taking non-credit-bearing, nondegree courses with students
without disabilities.
(iv) Participating in internships or work-based training in
settings with individuals without disabilities; and
(6) Provides students with intellectual disabilities opportunities
to participate in coursework and other activities with students without
disabilities.
(b) Student with an intellectual disability means a student--
(1) With mental retardation or a cognitive impairment characterized
by significant limitations in--
(i) Intellectual and cognitive functioning; and
(ii) Adaptive behavior as expressed in conceptual, social, and
practical adaptive skills; and
(2) Who is currently, or was formerly, eligible for special
education and related services under the Individuals with Disabilities
Education Act (IDEA) (20 U.S.C. 1401), including a student who was
determined eligible for special education or related services under the
IDEA but was home-schooled or attended private school.
(Authority: 20 U.S.C. 1091, 1140)
Sec. 668.232 Program eligibility.
An institution that offers a comprehensive transition and
postsecondary program must apply to the Secretary to have the program
determined to be an eligible program. The institution applies under the
provisions in 34 CFR 600.20 for adding an educational program, and must
include in its application--
(a) A detailed description of the comprehensive transition and
postsecondary program that addresses all of the components of the
program, as defined in Sec. 668.231;
(b) The institution's policy for determining whether a student
enrolled in the program is making satisfactory academic progress;
(c) The number of weeks of instructional time and the number of
semester or quarter credit hours or clock hours in the program,
including the equivalent credit or clock hours associated with
noncredit or reduced credit courses or activities;
(d) A description of the educational credential offered (e.g.,
degree or certificate) or identified outcome or outcomes established by
the institution for all students enrolled in the program;
(e) A copy of the letter or notice sent to the institution's
accrediting agency informing the agency of its comprehensive transition
and postsecondary program. The letter or notice must include a
description of the items in paragraphs (a) through (d) of this section;
and
(f) Any other information the Secretary may require.
(Approved by the Office of Management and Budget under control
number 1845-NEW4)
(Authority: 20 U.S.C. 1091)
Sec. 668.233 Student eligibility.
A student with an intellectual disability is eligible to receive
Federal Pell, FSEOG, and FWS program assistance under this subpart if--
(a) The student satisfies the general student eligibility
requirements under Sec. 668.32, except for the requirements in
paragraphs (a), (e), and (f) of that section. With regard to these
exceptions, a student--
(1) Does not have to be enrolled for the purpose of obtaining a
degree or certificate;
(2) Is not required to have a high school diploma, a recognized
equivalent of a high school diploma, or have passed an ability to
benefit test; and
(3) Is making satisfactory progress according to the institution's
published standards for students enrolled in its comprehensive
transition and postsecondary programs;
(b) The student is enrolled in a comprehensive transition and
postsecondary program approved by the Secretary; and
(c) The institution obtains a record from a local educational
agency that the student is or was eligible for special education and
related services under the IDEA. If that record does not identify the
student as having an intellectual disability, as described in paragraph
(1) of the definition of a student with an intellectual disability in
Sec. 668.231, the institution must also obtain documentation
establishing that the student has an intellectual disability, such as--
(1) A documented comprehensive and individualized psycho-
educational evaluation and diagnosis of an intellectual disability by a
psychologist or other qualified professional; or
(2) A record of the disability from a local or State educational
agency, or government agency, such as the Social Security
Administration or a vocational rehabilitation agency, that identifies
the intellectual disability.
(Approved by the Office of Management and Budget under control
number 1845-NEW4)
(Authority: 20 U.S.C. 1091)
PART 675--FEDERAL WORK-STUDY PROGRAMS
0
25. The authority citation for part 675 is revised to read as follows:
Authority: 20 U.S.C. 1070g, 1094; 42 U.S.C. 2751-2756b; unless
otherwise noted.
Sec. 675.2 [Amended]
0
26. In Sec. 675.2(b), paragraph (1) of the definition of community
services is amended by adding the words ``emergency preparedness and
response,'' after the words ``public safety,''.
0
27. Section 675.16 is revised to read as follow:
Sec. 675.16 Payments to students.
(a) General. (1) An institution must follow the disbursement
procedures in this section for paying a student his or her wages under
the FWS Program instead of the disbursement procedures in 34 CFR
668.164(a), (b), and (d) through (g), and 34 CFR 668.165. The
institution must follow 34 CFR 668.164(c) on making direct FWS payments
to students and 34 CFR 668.164(h) on handling the return of FWS funds
that are not received or negotiated by a student.
(2) An institution must pay a student FWS compensation at least
once a month.
(3) Before an institution makes an initial disbursement of FWS
compensation to a student for an award period, the institution must
notify the student of the amount of funds the student is authorized to
earn, and how and when the FWS compensation will be paid.
(4) Regardless of who employs the student, the institution is
responsible for ensuring that the student is paid for work performed.
(5) A student's FWS compensation is earned when the student
performs the work.
(6) An institution may pay a student after the student's last day
of attendance for FWS compensation earned while he or she was in
attendance at the institution.
[[Page 55949]]
(7) A correspondence student must submit his or her first completed
lesson before receiving a payment.
(8) The institution may not obtain a student's power of attorney to
authorize any disbursement of funds without prior approval from the
Secretary.
(9) An institution makes a disbursement of FWS program funds on the
date that the institution credits a student's account at the
institution or pays a student directly with--
(i) Funds received from the Secretary; or
(ii) Institutional funds used in advance of receiving FWS program
funds.
(b) Crediting a student's account at the institution. (1) If the
institution obtains the student's authorization described in paragraph
(d) of this section, the institution may use the FWS funds to credit a
student's account at the institution to satisfy--
(i) Current year charges for--
(A) Tuition and fees;
(B) Board, if the student contracts with the institution for board;
(C) Room, if the student contracts with the institution for room;
and
(D) Other educationally related charges incurred by the student at
the institution; and
(ii) Prior award year charges with the restriction provided in
paragraph (b)(2) of this section for a total of not more than $200
for--
(A) Tuition and fees, room, or board; and
(B) Other institutionally related charges incurred by the student
at the institution.
(2) If the institution is using FWS funds in combination with other
Title IV, HEA program funds to credit a student's account at the
institution to satisfy prior award year charges, a single $200 total
prior award year charge limit applies to the use of all the Title IV,
HEA program funds for that purpose.
(c) Credit balances. Whenever an institution disburses FWS funds by
crediting a student's account and the result is a credit balance, the
institution must pay the credit balance directly to the student as soon
as possible, but no later than 14 days after the credit balance
occurred on the account.
(d) Student authorizations. (1) Except for the noncash
contributions allowed under paragraph (e)(2) and (3) of this section,
if an institution obtains written authorization from a student, the
institution may--
(i) Use the student's FWS compensation to pay for charges described
in paragraph (b) of this section that are included in that
authorization; and
(ii) Except if prohibited by the Secretary under the reimbursement
or cash monitoring payment method, hold on behalf of the student any
FWS compensation that would otherwise be paid directly to the student
under paragraph (c) of this section.
(2) In obtaining the student's authorization to perform an activity
described in paragraph (d)(1) of this section, an institution--
(i) May not require or coerce the student to provide that
authorization;
(ii) Must allow the student to cancel or modify that authorization
at any time; and
(iii) Must clearly explain how it will carry out that activity.
(3) A student may authorize an institution to carry out the
activities described in paragraph (d)(1) of this section for the period
during which the student is enrolled at the institution.
(4)(i) If a student modifies an authorization, the modification
takes effect on the date the institution receives the modification
notice.
(ii) If a student cancels an authorization to use his or her FWS
compensation to pay for authorized charges under paragraph (b) of this
section, the institution may use those funds to pay only those
authorized charges incurred by the student before the institution
received the notice.
(iii) If a student cancels an authorization to hold his or her FWS
compensation under paragraph (d)(1)(ii) of this section, the
institution must pay those funds directly to the student as soon as
possible, but no later than 14 days after the institution receives that
notice.
(5) If an institution holds excess FWS compensation under paragraph
(d)(1)(ii) of this section, the institution must--
(i) Identify the amount of funds the institution holds for each
student in a subsidiary ledger account designed for that purpose;
(ii) Maintain, at all times, cash in its bank account in an amount
at least equal to the amount of FWS compensation the institution holds
for the student; and
(iii) Notwithstanding any authorization obtained by the institution
under this paragraph, pay any remaining balances by the end of the
institution's final FWS payroll period for an award year.
(e)(1) Timing of institutional share and noncash contributions.
Except for the noncash contributions allowed under paragraph (e)(2) or
(3) of this section, an institution must pay the student its share of
his or her FWS compensation at the same time it pays the Federal share.
(2) If an institution pays a student its FWS share for an award
period in the form of tuition, fees, services, or equipment, it must
pay that share before the student's final payroll period.
(3) If an institution pays its FWS share in the form of prepaid
tuition, fees, services, or equipment for a forthcoming academic
period, it must give the student a statement before the close of his or
her final payroll period listing the amount of tuition, fees, services,
or equipment earned.
(Authority: 20 U.S.C. 1091, 1094; 42 U.S.C. 2753)
0
28. Section 675.18 is amended by:
0
A. Adding paragraph (g)(4).
0
B. Adding paragraph (i).
0
C. Revising the authority citation at the end of the section.
The additions and revisions read as follows:
Sec. 675.18 Use of funds.
* * * * *
(g) * * *
(4)(i) In meeting the seven percent community service expenditure
requirement in paragraph (g)(1) of this section, students may be
employed to perform civic education and participation activities in
projects that--
(A) Teach civics in schools;
(B) Raise awareness of government functions or resources; or
(C) Increase civic participation.
(ii) To the extent practicable, in providing civic education and
participation activities under paragraph (g)(4)(i) of this section, an
institution must--
(A) Give priority to the employment of students in projects that
educate or train the public about evacuation, emergency response, and
injury prevention strategies relating to natural disasters, acts of
terrorism, and other emergency situations; and
(B) Ensure that the students receive appropriate training to carry
out the educational services required.
* * * * *
(i) Flexibility in the event of a major disaster. (1) An
institution located in any area affected by a major disaster may make
FWS payments to disaster-affected students for the period of time (not
to exceed the award period) in which the students were prevented from
fulfilling their FWS obligations. The FWS payments--
(i) May be made to disaster-affected students for an amount equal
to or less than the amount of FWS wages the students would have been
paid had the students been able to complete the work obligation
necessary to receive the funds;
[[Page 55950]]
(ii) May not be made to any student who was not eligible for FWS or
was not completing the work obligation necessary to receive the funds,
or had already separated from their employment prior to the occurrence
of the major disaster; and
(iii) Must meet the matching requirements of Sec. 675.26, unless
those requirements are waived by the Secretary.
(2) The following definitions apply to this section:
(i) Disaster-affected student means a student enrolled at an
institution who--
(A) Received an FWS award for the award period during which a major
disaster occurred;
(B) Earned FWS wages from an institution for that award period;
(C) Was prevented from fulfilling his or her FWS obligation for all
or part of the FWS award period because of the major disaster; and
(D) Was unable to be reassigned to another FWS job.
(ii) Major disaster is defined in section 102(2) of the Robert T.
Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C.
5122(2)).
(Authority: 20 U.S.C. 1095, 1096; 42 U.S.C. 2753, 2755, 2756, 2756b)
0
29. Section 675.26 is amended by:
0
A. In paragraph (d)(2)(iii), removing the word ``or'' that appears
after the punctuation ``;''.
0
B. In paragraph (d)(2)(iv), removing the punctuation ``.'' and adding,
in its place, the word ``; or''.
0
C. Adding paragraph (d)(2)(v).
The addition reads as follows:
Sec. 675.26 FWS Federal share limitations.
* * * * *
(d) * * *
(2) * * *
(v) The student is employed in community service activities and is
performing civic education and participation activities in a project as
defined in Sec. 675.18(g)(4).
* * * * *
0
30. Section 675.41 is amended by:
0
A. Revising paragraph (a).
0
B. Revising the paragraph heading and introductory text in paragraph
(b).
0
C. In paragraph (b)(2), removing the word ``, participation,''.
0
D. In paragraph (b)(5), removing the words ``work-learning'' and
adding, in their place, the words ``work-learning-service''.
0
E. In paragraph (b)(6), removing the words ``work-learning'' and
adding, in their place, the words ``work-learning-service''.
The revisions read as follows:
Sec. 675.41 Special definitions.
* * * * *
(a) Work-college: An eligible institution that--
(1) Is a public or private nonprofit, four-year, degree-granting
institution with a commitment to community service;
(2) Has operated a comprehensive work-learning-service program for
at least two years;
(3) Requires resident students, including at least one-half of all
students who are enrolled on a full-time basis, to participate in a
comprehensive work-learning-service program for at least five hours
each week, or at least 80 hours during each period of enrollment,
except summer school, unless the student is engaged in an
institutionally organized or approved study abroad or externship
program; and
(4) Provides students participating in the comprehensive work-
learning-service program with the opportunity to contribute to their
education and to the welfare of the community as a whole.
(b) Comprehensive student work-learning-service program: A student
work-learning-service program that--
* * * * *
Sec. 675.43 [Amended]
0
31. Section 675.43 is amended by removing the words ``work-learning''
and adding, in their place, the words ``work-learning-service''.
Sec. 675.44 [Amended]
0
32. Section 675.44(b) is amended by removing the words ``work-
learning'' and adding, in their place, the words ``work-learning-
service''.
Sec. 675.45 [Amended]
33. Section 675.45 is amended by:
0
A. In paragraph (a)(1), in the introductory text of paragraph (a)(4),
and in paragraph (a)(4)(i) removing the words ``work-learning'' and
adding, in their place, the words ``work-learning-service''.
0
B. In paragraph (a)(5), removing the words ``work service learning''
and adding, in their place, the words ``work-learning-service''.
PART 686--TEACHER EDUCATION ASSISTANCE FOR COLLEGE AND HIGHER
EDUCATION (TEACH) GRANT PROGRAM
0
34. The authority citation for part 686 continues to read as follows:
Authority: 20 U.S.C. 1070g, et seq., unless otherwise noted.
Sec. 686.12 [Amended]
0
35. Section 686.12(c)(1) is amended by adding the words ``, a
suspension approved under Sec. 686.41(a)(2), or a military discharge
granted under Sec. 686.42(c)(2)'' after the words ``teaching
service''.
0
36. Section 686.41 is amended by:
0
A. In the introductory text of paragraph (a)(2), removing the words
``and (ii)'' and adding, in their place, the words ``, (ii), and
(iii)''.
0
B. Revising paragraphs (a)(2)(ii), (b), and (c).
0
C. Adding an OMB control number at the end of the section.
The revisions and addition read as follows:
Sec. 686.41 Periods of suspension.
(a) * * *
(2) * * *
(ii) Does not exceed a total of three years under paragraph
(a)(1)(iii) of this section.
(b) A grant recipient, or his or her representative in the case of
a grant recipient who qualifies under paragraph (a)(1)(iii) of this
section, must apply for a suspension in writing on a form approved by
the Secretary prior to being subject to any of the conditions under
Sec. 686.43(a)(1) through (a)(5) that would cause the TEACH Grant to
convert to a Federal Direct Unsubsidized Loan.
(c) A grant recipient, or his or her representative in the case of
a grant recipient who qualifies under paragraph (a)(1)(iii) of this
section, must provide the Secretary with documentation supporting the
suspension request as well as current contact information including
home address and telephone number.
(Approved by the Office of Management and Budget under control
number 1845-0083)
* * * * *
0
37. Section 686.42 is amended by:
0
A. Adding paragraph (c).
0
B. Adding an OMB control number at the end of the section.
The additions read as follows:
Sec. 686.42 Discharge of agreement to serve.
* * * * *
(c) Military discharge. (1) A grant recipient who has completed or
who has otherwise ceased enrollment in a TEACH Grant-eligible program
for which he or she received TEACH Grant funds and has exceeded the
period of time allowed under Sec. 686.41(a)(2)(ii), may qualify for a
proportional discharge of his or her service obligation due to an
extended call or order to active duty status. To apply for a military
discharge, a grant recipient or his or her representative must submit a
written request to the Secretary.
(2) A grant recipient described in paragraph (c)(1) of this section
may receive a--
[[Page 55951]]
(i) One-year discharge of his or her service obligation if a call
or order to active duty status is for more than three years;
(ii) Two-year discharge of his or her service obligation if a call
or order to active duty status is for more than four years;
(iii) Three-year discharge of his or her service obligation if a
call or order to active duty status is for more than five years; or
(iv) Full discharge of his or her service obligation if a call or
order to active duty status is for more than six years.
(3) A grant recipient or his or her representative must provide the
Secretary with--
(i) A written statement from the grant recipient's commanding or
personnel officer certifying--
(A) That the grant recipient is on active duty in the Armed Forces
of the United States;
(B) The date on which the grant recipient's service began; and
(C) The date on which the grant recipient's service is expected to
end; or
(ii)(A) A copy of the grant recipient's official military orders;
and
(B) A copy of the grant recipient's military identification.
(4) For the purpose of this section, the Armed Forces means the
Army, Navy, Air Force, Marine Corps, and the Coast Guard.
(5) Based on a request for a military discharge from the grant
recipient or his or her representative, the Secretary will notify the
grant recipient or his or her representative of the outcome of the
discharge request. For the portion on the service obligation that
remains, the grant recipient remains responsible for fulfilling his or
her service obligation in accordance with Sec. 686.12.
(Approved by the Office of Management and Budget under control
number 1845-0083)
* * * * *
PART 690--FEDERAL PELL GRANT PROGRAM
0
38. The authority citation for part 690 continues to read as follows:
Authority: 20 U.S.C. 1070a, 1070g, unless otherwise noted.
0
39. Section 690.6 is amended by:
0
A. Revising the section heading.
0
B. Adding paragraph (e).
The revision and addition read as follows:
Sec. 690.6 Duration of student eligibility.
* * * * *
(e) If a student receives a Federal Pell Grant for the first time
on or after July 1, 2008, the student may receive no more than nine
Scheduled Awards.
* * * * *
0
40. Section 690.63 is amended by:
0
A. Adding paragraph (h).
0
B. Adding an OMB control number and authority citation at the end of
the section.
The additions read as follows:
Sec. 690.63 Calculation of a Federal Pell Grant for a payment period.
* * * * *
(h) Payment from two Scheduled Awards. (1) In a payment period, a
student may receive a payment from the student's first Scheduled Award
in the award year and the student's second Scheduled Award in the award
year if--
(i) The student is an eligible student who meets the provisions of
Sec. 690.67; and
(ii) The student's payment for the payment period is greater than
the remaining balance of the first Scheduled Award.
(2) The student's payment for the payment period--
(i) Is calculated based on the total credit or clock hours and
weeks of instructional time in the payment period; and
(ii) Is the remaining amount of the first Scheduled Award plus an
amount from the second Scheduled Award for the balance of the payment
for the payment period.
(Approved by the Office of Management and Budget under control
number 1845-NEW5)
(Authority: 20 U.S.C. 1070a)
0
41. Section 690.64 is revised to read as follows:
Sec. 690.64 Calculation of a Federal Pell Grant for a payment period
which occurs in two award years.
If a student enrolls in a payment period that is scheduled to occur
in two award years--
(a) The entire payment period must be considered to occur within
one award year;
(b)(1) An institution must assign the payment period to the award
year in which the student receives the greater payment for the payment
period based on the information available at the time that the
student's Federal Pell Grant is initially calculated;
(2) The institution must reassign the payment to the award year
providing the greater payment if the institution receives information
that the student would receive a greater payment for the payment period
by reassigning the payment to the other award year--
(i) Subsequent to the initial calculation of the student's payment
for the payment period; and
(ii) Not later than the deadline date for the first award year that
the Secretary establishes through publication in the Federal Register
for each award year; and
(3) The institution may reassign the payment to the award year
providing the greater payment if the institution receives information
that the student would receive a greater payment for the payment period
by reassigning the payment to the other award year--
(i) Subsequent to the deadline date established in paragraph (b)(2)
of this section; and
(ii) Not later than the deadline date for the first award year for
administrative relief based on unusual circumstances that the Secretary
establishes through publication in the Federal Register for each award
year;
(c) If an institution places the payment period in the first award
year, it shall pay a student with funds from the first award year; and
(d) If an institution places the payment period in the second award
year, it shall pay a student with funds from the second award year.
(Approved by the Office of Management and Budget under control
number 1845-NEW5)
(Authority: 20 U.S.C. 1070a)
0
42. Section 690.67 is revised to read as follows:
Sec. 690.67 Receiving up to two Scheduled Awards during a single
award year.
(a) Eligibility. An institution shall award up to the full amount
of a second Scheduled Award to a student in an award year if the
student--
(1) Is enrolled for credit or clock hours that are attributable to
the student's second academic year in the award year;
(2) Is enrolled in an eligible program leading to a bachelor's or
associate degree or other recognized educational credential except as
provided in 34 CFR part 668, subpart O for students with intellectual
disabilities; and
(3) Is enrolled at least as a half-time student.
(b) Transfer student. (1) Options. If a student transfers to an
institution during an award year, the institution must determine the
credit or clock hours earned in the award year at the other
institutions in accordance with paragraph (b)(2) or (3) of this
section.
(2) Assumption method. (i) The institution may assume that a
student has completed the credit or clock hours in the first academic
year of the award year if the first Scheduled Award was disbursed at
other institutions during the award year; or
(ii) If less than the first Scheduled Award has been disbursed at a
prior
[[Page 55952]]
institution that the student attended during the award year, the
institution must determine the credit or clock hours the student is
considered to have previously earned in the award year by--
(A) Multiplying the amount of the student's Scheduled Award
disbursed at a prior institution during the award year by the number of
credit or clock hours in the institution's academic year and dividing
the product of the multiplication by the amount of the Scheduled Award
at the prior institution; and
(B) If the student previously attended more than one institution in
the award year, adding the results of paragraph (b)(2)(i) of this
section for each prior institution.
(3) Hours-earned method. (i) If the institution has information
concerning the credit or clock hours earned by a student while
attending other institutions, the institution may determine the credit
or clock hours actually earned at other institutions.
(ii) To make a determination under paragraph (b)(3)(i) of this
section, the institution must have information that--
(A) Includes the time periods when the credit or clock hours were
earned; and
(B) Does not include nonapplicable credit or clock hours described
in paragraph (d) of this section.
(iii) An institution must attribute to the current award year any
credit or clock hours earned at other institutions that were earned in
a payment period that it determines was scheduled to occur in the prior
award year and the current award year.
(4) Receipt of additional information. (i) If an institution
receives additional information concerning, for paragraph (b)(2) of
this section, Federal Pell Grant disbursements or, for paragraph (b)(3)
of this section, credit or clock hours earned at other institutions and
related information, subsequent to a prior payment period in which the
institution disbursed a payment of a second Scheduled Award in the
award year based on the application of paragraph (b)(2) or (3) of this
section, the institution is not required to apply the information to
the prior payment period.
(c) Special circumstances. (1) In a payment period in which there
is insufficient remaining eligibility from a student's first Scheduled
Award to provide a full payment for the payment period, the financial
aid administrator at the institution may waive the requirement in
paragraph (a)(1) of this section, if the financial aid administrator--
(i) Determines that the student due to circumstances beyond the
student's control was unable to complete the credit or clock hours of
the first academic year that are necessary to be enrolling for credit
or clock hours that are attributable to the second academic year; and
(ii) The determination is made and documented on an individual
basis.
(2) For purposes of paragraph (c)(1) of this section, circumstances
beyond a student's control--
(i) May include, but are not limited to, the student withdrawing
from classes due to illness or being unable to register for classes
necessary to complete his or her eligible program because those classes
were not offered during that period; and
(ii) Do not include, for example, withdrawing to avoid a particular
grade or failing to register for a necessary class that was offered
during the period to avoid a particular instructor.
(d) Nonapplicable credit or clock hours. To determine the student's
eligibility for a second Scheduled Award in an award year, an
institution may not use credit or clock hours that the student received
based on Advanced Placement (AP) programs, International Baccalaureate
(IB) programs, testing out, life experience, or similar competency
measures.
(Approved by the Office of Management and Budget under control
number 1845-NEW5)
(Authority: 20 U.S.C. 1070a)
PART 692--LEVERAGING EDUCATIONAL ASSISTANCE PARTNERSHIP PROGRAM
0
43. The authority citation for part 692 is revised to read as follows:
Authority: 20 U.S.C. 1070c-1070c-4, unless otherwise noted.
Sec. 692.10 [Amended]
0
44. Section 692.10 is amended by:
0
A. In paragraph (a)(1), adding the words ``for the programs under this
part'' after the number ``1979''.
0
B. In paragraph (a)(2), removing the word ``If'' and adding, in its
place, the words ``For the programs under this part, if''.
0
C. In paragraph (a)(2), removing the word ``LEAP'' each time it
appears.
0
D. In paragraph (b), removing the word ``-appropriated'' after the word
``State'', both times it appears.
0
E. In the authority citation at the end of the section, adding ``,
1070c-2'' after the number ``1070c''
0
45. Section 692.21 is amended by:
0
A. In paragraph (c), removing the figure ``$5,000'' and adding, in its
place, the words ``the lesser of $12,500 or the student's cost of
attendance under section 472 of the HEA''.
0
B. In paragraph (j), removing the word ``and'' that appears after the
punctuation ``;''.
0
C. Redesignating paragraph (k) as paragraph (l).
0
D. Adding a new paragraph (k).
0
E. Adding an OMB control number at the end of the section.
The additions read as follows:
Sec. 692.21 What requirements must be met by a State program?
* * * * *
(k) Notifies eligible students that the grants are--
(1) Leveraging Educational Assistance Partnership Grants; and
(2) Funded by the Federal Government, the State, and, where
applicable, other contributing partners; and
* * * * *
(Approved by the Office of Management and Budget under control
number 1845-NEW7)
* * * * *
0
46. Section 692.70 is revised to read as follows:
Sec. 692.70 How does the Secretary allot funds to the States?
For fiscal year 2010-2011, the Secretary allots to each eligible
State that applies for SLEAP funds an amount in accordance with the
provisions in Sec. 692.10 prior to calculating allotments for States
applying for GAP funds under subpart C of this part.
(Authority: 20 U.S.C. 1070c-3a)
0
47. Subpart C, consisting of Sec. Sec. 692.90 through 692.130 and
Appendix A, is added to part 692 to read as follows:
Subpart C--Grants for Access and Persistence Program
General
Sec.
692.90 What is the Grants for Access and Persistence Program?
692.91 What other regulations apply to the GAP Program?
692.92 What definitions apply to the GAP Program?
692.93 Who is eligible to participate in the GAP Program?
692.94 What requirements must a State satisfy, as the administrator
of a partnership, to receive GAP Program funds?
How Does a State Apply to Participate in GAP?
692.100 What requirements must a State meet to receive an allotment
under this program?
692.101 What requirements must be met by a State partnership?
[[Page 55953]]
What Is the Amount of Assistance and How May It Be Used?
692.110 How does the Secretary allot funds to the States?
692.111 For what purposes may a State use its payment under the GAP
Program?
692.112 May a State use the funds it receives from the GAP Program
to pay administrative costs?
692.113 What are the matching requirements for the GAP Program?
How Does the Partnership Select Students Under the GAP Program?
692.120 What are the requirements for student eligibility?
How Does the Secretary Approve a Waiver of Program Requirements?
692.130 How does a participating institution request a waiver of
program requirements?
Appendix A to Subpart C of Part 692--Grants for Access and
Persistence Program (GAP) State Grant Allotment Case Study
Subpart C--Grants for Access and Persistence Program
General
Sec. 692.90 What is the Grants for Access and Persistence Program?
The Grants for Access and Persistence (GAP) Program assists States
in establishing partnerships to provide eligible students with LEAP
Grants under GAP to attend institutions of higher education and to
encourage increased participation in early information and
intervention, mentoring, or outreach programs.
(Authority: 20 U.S.C. 1070c-3a)
Sec. 692.91 What other regulations apply to the GAP Program?
The regulations listed in Sec. 692.3 also apply to the GAP
Program.
(Authority: 20 U.S.C. 1070c-3a)
Sec. 692.92 What definitions apply to the GAP Program?
The definitions listed in Sec. 692.4 also apply to the GAP
Program.
(Authority: 20 U.S.C. 1070c-3a)
Sec. 692.93 Who is eligible to participate in the GAP Program?
(a) States. States that meet the requirements in Sec. Sec. 692.94
and 692.100 are eligible to receive payments under the GAP Program.
(b) Degree-granting institutions of higher education. Degree-
granting institutions of higher education that meet the requirements in
Sec. 692.101 are eligible to participate in a partnership under the
GAP Program.
(c) Early information and intervention, mentoring, or outreach
programs. Early information and intervention, mentoring, or outreach
programs that meet the requirements in Sec. 692.101 are eligible to
participate in a partnership under the GAP Program.
(d) Philanthropic organizations or private corporations.
Philanthropic organizations or private corporations that meet the
requirements in Sec. 692.101 are eligible to participate in a
partnership under the GAP Program.
(e) Students. Students who meet the requirements of Sec. 692.120
are eligible to receive assistance or services from a partnership under
the GAP Program.
(Authority: 20 U.S.C. 1070c-3a)
Sec. 692.94 What requirements must a State satisfy, as the
administrator of a partnership, to receive GAP Program funds?
To receive GAP Program funds for any fiscal year--
(a) A State must--
(1) Participate in the LEAP Program;
(2) Establish a State partnership with--
(i) At least--
(A) One public degree-granting institution of higher education that
is located in the State; and
(B) One private degree-granting institution of higher education, if
at least one exists in the State that may be eligible to participate in
the State's LEAP Program under subpart A of this part;
(ii) New or existing early information and intervention, mentoring,
or outreach programs located in the State; and
(iii) At least one philanthropic organization located in, or that
provides funding in, the State, or private corporation located in, or
that does business in, the State;
(3) Meet the requirements in Sec. 692.100; and
(4) Have a program under this subpart that satisfies the
requirements in Sec. 692.21(a), (e), (f), (g), and (j).
(b) A State may provide an early information and intervention,
mentoring, or outreach program under paragraph (a)(2)(ii) of this
section.
(Authority: 20 U.S.C. 1070c-3a)
How Does a State Apply to Participate in GAP?
Sec. 692.100 What requirements must a State meet to receive an
allotment under this program?
For a State to receive an allotment under the GAP Program, the
State agency that administers the State's LEAP Program under subpart A
of this part must--
(a) Submit an application on behalf of a partnership in accordance
with the provisions in Sec. 692.20 at such time, in such manner, and
containing such information as the Secretary may require including--
(1) A description of--
(i) The State's plan for using the Federal funds allotted under
this subpart and the non-Federal matching funds; and
(ii) The methods by which matching funds will be paid;
(2) An assurance that the State will provide matching funds in
accordance with Sec. 692.113;
(3) An assurance that the State will use Federal GAP funds to
supplement, and not supplant, Federal and State funds available for
carrying out the activities under Title IV of the HEA;
(4) An assurance that early information and intervention,
mentoring, or outreach programs exist within the State or that there is
a plan to make these programs widely available;
(5) A description of the organizational structure that the State
has in place to administer the program, including a description of how
the State will compile information on degree completion of students
receiving grants under this subpart;
(6) A description of the steps the State will take to ensure, to
the extent practicable, that students who receive a LEAP Grant under
GAP persist to degree completion;
(7) An assurance that the State has a method in place, such as
acceptance of the automatic zero expected family contribution under
section 479(c) of the HEA, to identify eligible students and award LEAP
Grants under GAP to such students;
(8) An assurance that the State will provide notification to
eligible students that grants under this subpart are LEAP Grants and
are funded by the Federal Government and the State, and, where
applicable, other contributing partners.
(b) Serve as the primary administrative unit for the partnership;
(c) Provide or coordinate non-Federal share funds, and coordinate
activities among partners;
(d) Encourage each institution of higher education in the State
that participates in the State's LEAP Program under subpart A of this
part to participate in the partnership;
(e) Make determinations and early notifications of assistance;
(f) Ensure that the non-Federal funds used as matching funds
represent dollars that are in excess of the total dollars that a State
spent for need-based grants, scholarships, and work-study assistance
for fiscal year 1999, including the State funds reported for the
programs under this part;
[[Page 55954]]
(g) Provide an assurance that, for the fiscal year prior to the
fiscal year for which the State is requesting Federal funds, the amount
the State expended from non-Federal sources per student, or the
aggregate amount the State expended, for all the authorized activities
in Sec. 692.111 will be no less than the amount the State expended
from non-Federal sources per student, or in the aggregate, for those
activities for the second fiscal year prior to the fiscal year for
which the State is requesting Federal funds; and
(h) Provide for reports to the Secretary that are necessary to
carry out the Secretary's functions under the GAP Program.
(Approved by the Office of Management and Budget under control
number 1845-NEW7)
(Authority: 20 U.S.C. 1070c-3a)
Sec. 692.101 What requirements must be met by a State partnership?
(a) State. A State that is receiving an allotment under this
subpart must meet the requirements under Sec. Sec. 692.94 and 692.100.
(b) Degree-granting institution of higher education. A degree-
granting institution of higher education that is in a partnership under
this subpart--
(1) Must participate in the State's LEAP Program under subpart A of
this part;
(2) Must recruit and admit participating eligible students and
provide additional institutional grant aid to participating students as
agreed to with the State agency;
(3) Must provide support services to students who receive LEAP
Grants under GAP and are enrolled at the institution;
(4) Must assist the State in the identification of eligible
students and the dissemination of early notifications of assistance as
agreed to with the State agency; and
(5) May provide funding or services for early information and
intervention, mentoring, or outreach programs.
(c) Early information and intervention, mentoring, or outreach
program. An early information and intervention, mentoring, or outreach
program that is in a partnership under this subpart shall provide
direct services, support, and information to participating students.
(d) Philanthropic organization or private corporation. A
philanthropic organization or private corporation in a partnership
under this subpart shall provide non-Federal funds for LEAP Grants
under GAP for participating students or provide funds or support for
early information and intervention, mentoring, or outreach programs.
(Approved by the Office of Management and Budget under control
number 1845-NEW7)
(Authority: 20 U.S.C. 1070c-3a)
What Is the Amount of Assistance and How May It Be Used?
Sec. 692.110 How does the Secretary allot funds to the States?
(a)(1) The Secretary allots to each State participating in the GAP
Program an amount of the funds available for the GAP Program based on
the ratio used to allot the State's Federal LEAP funds under Sec.
692.10(a).
(2) If a State meets the requirements of Sec. 692.113(b) for a
fiscal year, the number of students under Sec. 692.10(a) for the State
is increased to 125 percent in determining the ratio in paragraph (a)
of this section for that fiscal year.
(3) Notwithstanding paragraph (a)(1) and (2) of this section--
(i) If the Federal GAP funds available from the appropriation for a
fiscal year are sufficient to allot to each State that participated in
the prior year the same amount of Federal GAP funds allotted in the
prior fiscal year, but are not sufficient both to allot the same amount
of Federal GAP funds allotted in the prior fiscal year to these States
and also to allot additional funds to additional States in accordance
with the ratio used to allot the States' Federal LEAP funds under Sec.
692.10(a), the Secretary allots--
(A) To each State that participated in the prior year, the amount
the State received in the prior year; and
(B) To each State that did not participate in the prior year, an
amount of Federal GAP funds available to States based on the ratio used
to allot the State's Federal LEAP funds under Sec. 692.10(a); and
(ii) If the Federal GAP funds available from the appropriation for
a fiscal year are not sufficient to allot to each State that
participated in the prior year at least the amount of Federal GAP funds
allotted in the prior fiscal year, the Secretary allots to each State
an amount which bears the same ratio to the amount of Federal GAP funds
available as the amount of Federal GAP funds allotted to each State in
the prior fiscal year bears to the amount of Federal GAP funds allotted
to all States in the prior fiscal year.
(4) For fiscal year 2011, the prior fiscal year allotment to a
State for purposes of paragraph (a)(3) of this section shall include
any fiscal year 2010 allotment made to that State under subpart B of
this part.
(b) The Secretary allots funds available for reallotment in a
fiscal year in accordance with the provisions of paragraph (a) of this
section used to calculate initial allotments for the fiscal year.
(c) Any funds made available for the program under this subpart but
not expended may be allotted or reallotted for the program under
subpart A of this part.
(Authority: 20 U.S.C. 1070c-3a)
Sec. 692.111 For what purposes may a State use its payment under the
GAP Program?
(a) Establishment of a partnership. Each State receiving an
allotment under this subpart shall use the funds to establish a
partnership to award grants to eligible students in order to increase
the amount of financial assistance students receive under this subpart
for undergraduate education expenses.
(b) Amount of LEAP Grants under GAP. (1) The amount of a LEAP Grant
under GAP by a State to an eligible student shall be not less than--
(i) The average undergraduate in-State tuition and mandatory fees
for full-time students at the public institutions of higher education
in the State where the student resides that are the same type of
institution that the student attends (four-year degree-granting, two-
year degree-granting, or non-degree-granting); minus
(ii) Other Federal and State aid the student receives.
(2) The Secretary determines the average undergraduate in-State
tuition and mandatory fees for full-time students at public
institutions in a State weighted by enrollment using the most recent
data reported by institutions in the State to the Integrated
Postsecondary Education Data System (IPEDS) administered by the
National Center for Educational Statistics.
(c) Institutional participation. (1) A State receiving an allotment
under this subpart may restrict the use of LEAP Grants under GAP only
to students attending institutions of higher education that are
participating in the partnership.
(2) If a State provides LEAP Grants under subpart A of this part to
students attending institutions of higher education located in another
State, LEAP Grants under GAP may be used at institutions of higher
education located in another State.
(d) Early notification to potentially eligible students. (1) Each
State receiving an allotment under this subpart shall annually notify
potentially eligible students in grades 7 through 12 in the State, and
their families, of their potential eligibility for student financial
assistance, including a LEAP Grant under GAP, to attend a LEAP-
participating institution of higher education.
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(2) The notice shall include--
(i) Information about early information and intervention,
mentoring, or outreach programs available to the student;
(ii) Information that a student's eligibility for a LEAP Grant
under GAP is enhanced through participation in an early information and
intervention, mentoring, or outreach program;
(iii) An explanation that student and family eligibility for, and
participation in, other Federal means-tested programs may indicate
eligibility for a LEAP Grant under GAP and other student aid programs;
(iv) A nonbinding estimate of the total amount of financial aid
that an eligible student with a similar income level may expect to
receive, including an estimate of the amount of a LEAP Grant under GAP
and an estimate of the amount of grants, loans, and all other available
types of aid from the major Federal and State financial aid programs;
(v) An explanation that in order to be eligible for a LEAP Grant
under GAP, at a minimum, a student shall--
(A) Meet the eligibility requirements under Sec. 692.120; and
(B) Enroll at a LEAP-participating institution of higher education
in the State of the student's residence or an out-of-state institution
if the State elects to make LEAP Grants under GAP for attendance at
out-of-State institutions in accordance with paragraph (c)(2) of this
section;
(vi) Any additional requirements that the State may require for
receipt of a LEAP Grant under GAP in accordance with Sec.
692.120(a)(4); and
(vii) An explanation that a student is required to file a Free
Application for Federal Student Aid to determine his or her eligibility
for Federal and State financial assistance and may include a provision
that eligibility for an award is subject to change based on--
(A) A determination of the student's financial eligibility at the
time of the student's enrollment at a LEAP-participating institution of
higher education or an out-of-State institution in accordance with
paragraph (c)(2) of this section;
(B) Annual Federal and State spending for higher education; and
(C) Other aid received by the student at the time of the student's
enrollment at the institution of higher education.
(e) Award notification. (1) Once a student, including a student who
has received early notification under paragraph (d) of this section,
applies for admission to an institution that is a partner in the
partnership of the State of the student's residence, files a Free
Application for Federal Student Aid and any related State form, and is
determined eligible by the State, the State shall--
(i) Issue the student a preliminary award certificate for a LEAP
Grant under GAP with estimated award amounts; and
(ii) Inform the student that the payment of the grant is subject to
certification of enrollment and eligibility by the institution.
(2) If a student enrolls in an institution that is not a partner in
the partnership of the student's State of residence but the State has
not restricted eligibility to students enrolling in partner
institutions, including, if applicable, out-of-State institutions, the
State shall, to the extent practicable, follow the procedures of
paragraph (e)(1) of this section.
(Approved by the Office of Management and Budget under control
number 1845-NEW7)
(Authority: 20 U.S.C. 1070c-3a)
Sec. 692.112 May a State use the funds it receives from the GAP
Program to pay administrative costs?
(a) A State that receives an allotment under this subpart may
reserve not more than two percent of the funds made available annually
for State administrative functions required for administering the
partnership and other program activities.
(b) A State must use not less than ninety-eight (98) percent of an
allotment under this subpart to make LEAP Grants under GAP.
(Authority: 20 U.S.C. 1070c-3a)
Sec. 692.113 What are the matching requirements for the GAP Program?
(a) The matching funds of a partnership--
(1) Shall be funds used for making LEAP Grants to eligible students
under this subpart;
(2) May be--
(i) Cash; or
(ii) A noncash, in-kind contribution that--
(A) Is fairly evaluated;
(B) Has monetary value, such as a tuition waiver or provision of
room and board, or transportation;
(C) Helps a student meet the cost of attendance at an institution
of higher education; and
(D) Is considered to be estimated financial assistance under 34 CFR
673.5(c); and
(3) May be funds from the State, institutions of higher education,
or philanthropic organizations or private corporations that are used to
make LEAP Grants under GAP.
(b) The non-Federal match of the Federal allotment shall be--
(1) Forty-three percent of the expenditures under this subpart if a
State applies for a GAP allotment in partnership with--
(i) Any number of degree-granting institutions of higher education
in the State whose combined full-time enrollment represents less than a
majority of all students attending institutions of higher education in
the State as determined by the Secretary using the most recently
available data from IPEDS; and
(ii) One or both of the following--
(A) Philanthropic organizations that are located in, or that
provide funding in, the State; or
(B) Private corporations that are located in, or that do business
in, the State; and
(2) Thirty-three and thirty-four one-hundredths percent of the
expenditures under this subpart if a State applies for a GAP allotment
in partnership with--
(i) Any number of degree-granting institutions of higher education
in the State whose combined full-time enrollment represents a majority
of all students attending institutions of higher education in the State
as determined by the Secretary using the most recently available data
from IPEDS; and
(ii) One or both of the following--
(A) Philanthropic organizations that are located in, or that
provide funding in, the State; or
(B) Private corporations that are located in, or that do business
in, the State.
(c) Nothing in this part shall be interpreted as limiting a State
or other member of a partnership from expending funds to support the
activities of a partnership under this subpart that are in addition to
the funds matching the Federal allotment.
(Authority: 20 U.S.C. 1070c-3a)
How Does the Partnership Select Students Under the GAP Program?
Sec. 692.120 What are the requirements for student eligibility?
(a) Eligibility. A student is eligible to receive a LEAP Grant
under GAP if the student--
(1) Meets the relevant eligibility requirements contained in 34 CFR
668.32;
(2) Has graduated from secondary school or, for a home-schooled
student, has completed a secondary education;
(3)(i) Has received, or is receiving, a LEAP Grant under GAP for
each year the student remains eligible for assistance under this
subpart; or
(ii) Meets at least two of the following criteria--
(A) As designated by the State, either has an EFC equal to zero, as
determined
[[Page 55956]]
under part F of the HEA, or a comparable alternative based on the
State's approved criteria for the LEAP Program under subpart A of this
part;
(B) Qualifies for the State's maximum undergraduate award for LEAP
Grants under subpart A of this part in the award year in which the
student is receiving an additional LEAP Grant under GAP; or
(C) Is participating in, or has participated in, a Federal, State,
institutional, or community early information and intervention,
mentoring, or outreach program, as determined by the State agency
administering the programs under this part; and
(4) Any additional requirements that the State may require for
receipt of a LEAP Grant under GAP.
(b) Priority. In awarding LEAP Grants under GAP, a State shall give
priority to students meeting all the criteria in paragraph (a)(3)(i) of
this section.
(c) Duration of eligibility. (1) A student may receive a LEAP Grant
under GAP if the student continues to demonstrate that he or she is
financially eligible by meeting the provisions of paragraph
(a)(3)(ii)(A) or (B) of this section.
(2) A State may impose reasonable time limits to degree completion.
(Authority: 20 U.S.C. 1070c-3a)
How Does the Secretary Approve a Waiver of Program Requirements?
Sec. 692.130 How does a participating institution request a waiver of
program requirements?
(a) The Secretary may grant, upon the request of an institution
participating in a partnership that meets the requirements of Sec.
692.113(b)(2), a waiver for the institution from statutory or
regulatory requirements that inhibit the ability of the institution to
successfully and efficiently participate in the activities of the
partnership.
(b) An institution must submit a request for a waiver through the
State agency administering the partnership.
(c) The State agency must forward to the Secretary, in a timely
manner, the request made by the institution and may include any
additional information or recommendations that it deems appropriate for
the Secretary's consideration.
(Authority: 20 U.S.C. 1070c-3a)
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[FR Doc. E9-25373 Filed 10-28-09; 8:45 am]
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