Office of Postsecondary Education - U.S. Department of Education

WReier-Aviles on DSKGBLS3C1PROD with RULES266898 Federal Register / Vol. 75, No. 209 / Friday, October 29, 2010 / Rules and Regulationsperiod in determining a withdrawal datefor a student. For students in attendanceat the end of that limited period, if theinstitution is not required to takeattendance and does not require itsfaculty to do so, then the guidelines fordetermining a withdrawal date for aninstitution that is not required to takeattendance would apply. TheDepartment continues to believe that thebest data available should be used indetermining a student’s withdrawal datefrom classes, and, accordingly, if aninstitution requires the taking ofattendance or is required to takeattendance for any limited period, thenthose records must be used.Lastly, we disagree with the commentthat an outside entity should not be ableto require an institution to takeattendance. We continue to believe thatour policy that an ‘‘institution that isrequired to take attendance’’ means aninstitution that is required to takeattendance by an outside entity is areasonable interpretation of the statute.The phrase ‘‘required to takeattendance’’ presupposes that an entityhas this requirement, and under thisregulation, that entity may be either theinstitution itself or a separate entity.Changes: None.Comment: A few commentersexpressed concern about who woulddecide what ‘‘required to takeattendance means.’’ Specifically, theywere concerned that the Departmentwould determine that an institution oroutside entity had a requirement thatattendance be taken at an institution,even if the institution or outside entitydisagreed with that conclusion. Thecommenters believed that the entityrequiring the taking of attendanceshould make the determination aboutwhen attendance must be taken andwhat kind of documentation to supportattendance taking is necessary, and thatthe Department should not superimposeits view of attendance taking on thatentity. In particular, a few commentersopposed the idea that the Departmentwould consider clock-hour institutionsto be institutions required to takeattendance if an outside entity or theinstitutions themselves did not believethat they were. One commenterrecommended that we remove§ 668.22(b)(3)(i)(C), believing that aninstitution could be found innoncompliance by the Department if theinstitution or outside entity had adifferent interpretation of whethertaking attendance was required.A couple of commenters requestedclarification that, in a case where astudent must be physically present todemonstrate a competency or skill,attendance taking would not beautomatically required. Instead, theinstitution or another outside entitywould have the responsibility ofdeciding whether attendance taking wasnecessary. Further, one commentersuggested that a ‘‘requirement’’ to takeattendance should mean a writtenregulation or policy tied to determiningseat time and not a quality inherent tothe type of program.Discussion: For institutions that arerequired to measure the clock hours astudent completes in a program, theDepartment believes that this is, insubstance, a requirement for thoseinstitutions to take attendance for thoseprograms since they satisfy both therequirement of determining that astudent is present and that the studentis participating in a core academicactivity. The Department is looking atthe substance of the information that isavailable rather than the way thatinformation is described or portrayed bythe institution or outside entity. If theinstitution is required to collectinformation or record information aboutwhether a student was in attendanceduring a payment period, or during alimited period of time during a paymentperiod, that information should be usedto determine if the student ceasedattendance during that period.Changes: None.Comment: Commenters had a numberof questions about the documentationand the maintenance of attendancerecords, generally requestingclarification about how attendance mustbe documented and what constitutesattendance in an academic oracademically-related activity. Onecommenter asked for specific guidanceas to the definition of an attendancerecord, and requested clarification as tohow often attendance must be taken atan institution required to takeattendance. Another commenter askedwhat documentation would be sufficientto demonstrate attendance in cases inwhich students do not physically attendclass but watch a video or podcast of thelecture remotely. Similarly, acommenter asked whether a studentwould be considered in attendance if heor she participated in an academicallyrelatedactivity but was not physicallypresent, such as working with aninstructor by phone or e-mail. A fewcommenters requested clarification andguidance about what the Departmentbelieves constitutes attendance in adistance education context and how aninstitution should document thatattendance. One commenter requestedthat the Department ensure that theevidence required of last day ofattendance in online programs for thepurpose of a Return of Title IV FundsVerDate Mar2010 14:10 Oct 28, 2010 Jkt 223001 PO 00000 Frm 00068 Fmt 4701 Sfmt 4700 E:\FR\FM\29OCR2.SGM 29OCR2calculation be substantially comparableto that required of traditional, face-tofaceprograms. The same commenterwas also concerned that the Departmentwould be requiring documentationbeyond that required in the past withoutproviding sufficient time for institutionsto implement this change.Discussion: In accordance with§ 668.22(b)(2) and (c)(4), an institutionmust document a student’s withdrawaldate and maintain that documentationas of the date of the institution’sdetermination that the studentwithdrew. As noted in the FederalStudent Aid Handbook (FSAHandbook), the determination of astudent’s withdrawal date is theresponsibility of the institution; astudent’s certification of attendance thatis not supported by institutionaldocumentation would not be acceptabledocumentation of the student’s last dateof attendance at an academically-relatedactivity. As with other title IV, HEAprogram records, documentation ofattendance must be retained and beavailable for examination in accordancewith the provisions of § 668.24. If aninstitution is required to take attendanceor is an institution that is not requiredto take attendance, but is using a lastdate of attendance at an academicallyrelatedactivity as a withdrawal date, itis up to the institution to ensure thataccurate records are kept for purposes ofidentifying a student’s last date ofacademic attendance or last date ofattendance at an academically-relatedactivity. An institution must alsodetermine and maintain the records thatmost accurately support itsdetermination of a student’s withdrawaldate and the institution’s use of onewithdrawal date over another if theinstitution has conflicting information.To count as attendance for title IV,HEA program purposes, attendancemust be ‘‘academic attendance’’ or‘‘attendance at an academically-relatedactivity.’’ We have defined those termsin new § 668.22(l)(7) by providingexamples of academically-relatedactivities that institutions that are notrequired to take attendance may use indetermining a student’s last date ofattendance at an academically-relatedactivity. Certainly, traditional academicattendance is acceptable, i.e., a student’sphysical attendance in a class wherethere is an opportunity for directinteraction between the instructor andstudents. Additionally, academicallyrelatedactivities may include an exam,a tutorial, computer-assisted instruction,academic counseling, academicadvising, turning in a class assignment,or attending a study group that isassigned by the institution. The