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

WReier-Aviles on DSKGBLS3C1PROD with RULES266900 Federal Register / Vol. 75, No. 209 / Friday, October 29, 2010 / Rules and Regulationsthat institutions should use the best dataavailable in determining a student’swithdrawal date from classes.Accordingly, if an institution requiresthe taking of attendance or is requiredto take attendance for any limitedperiod of a semester or other paymentperiod, then those records should beused when determining a student’s dateof withdrawal for the purposes of aReturn of Title IV Funds calculation.With respect to comments regardingthe complexity of the regulations, theyaddress the taking attendance policiesthat are either required by an outsideparty or required by the institutionitself. Institutions would already beexpected to follow these requirements,and the regulations provide for thatattendance information to be used whenit indicates a student has stoppedattending during this limited period. Forstudents in attendance at the end of thatlimited period, the guidelines fordetermining a withdrawal date for aninstitution that is not required to takeattendance would apply until the startof the next period during whichattendance taking is required. Anyincrease in overall burden is mitigatedsince this requirement is tied to policiesfor taking attendance that are already inplace at institutions, and uses theexisting requirements for determiningthe amount of Federal funds a studentearned based upon that information.Cases of noncompliance are addressedon a case by case basis when theoccurrences are isolated, andinstitutions are expected to takeappropriate corrective actions when anerror is brought to their attention duringa self-audit, a compliance audit, or aprogram review. Accordingly, theDepartment does not believe it isnecessary to delay the implementationdate of these regulations, or to reopenthe issue for negotiation.Changes: None.Comment: A few commentersopposed the proposed changes, arguingthat the proposed regulations exceed theSecretary’s authority under the law. Thecommenters believed that Congressintentionally allowed institutions theoption to use the midpoint of thepayment period because it recognizedthat institutions have already incurredcosts when a student fails to withdrawofficially. A few commenters believedthat the definition of last day ofattendance under the statute issufficient and that the Departmentshould not make any changes to theregulations. Some commenters opposedthe proposal that an ‘‘institutionrequired to take attendance’’ includes aninstitution that takes attendancevoluntarily, arguing that the wording ofthe statute, which states ‘‘institutionsthat are required to take attendance’’ andnot ‘‘institutions that take attendance,’’indicates that Congress did not intend toinclude institutions that choose to takeattendance in that category. Othercommenters expressed strong supportfor the broadened definition.Discussion: Under the law,institutions that are required to takeattendance must use that information todetermine when students who do notcomplete a class stopped attending. It iscommon for the Department to viewrequirements established by aninstitution, such as an institutionalrefund policy, as being a requirementfor that institution. The Secretarybelieves it is reasonable to interpret thelaw to include instances where theinstitution itself is establishing therequirement to take attendance for aprogram, a department, or the entireinstitution. The regulations do notinclude instances where a facultymember would monitor studentattendance but was not required to doso by the institution. Furthermore, thereis no reason that attendance informationrequired by an institution would bedifferent in substance from attendanceinformation required by other entities. Itis the process of taking attendance itselfthat leads to the information beingavailable, regardless of whether it isrequired by the institution or an outsideentity. The law provides thatinstitutions that are required to takeattendance must use that informationfor students who stop attending, and theregulations define the term ‘‘required totake attendance’’ to include instanceswhere the institution itself isestablishing that requirement for aprogram, a subpopulation of a program,a department, or the entire institution.The Secretary also believes that thisinformation should be used when it isavailable, even if attendance is notrequired and is only taken for a limitedperiod during the payment period orperiod of enrollment.Changes: None.Comment: A number of commentersrequested clarification about whether aninstitution would be required to performa Return of Title IV Funds calculationfor students that were not in attendanceon the last day of a limited censusperiod. Specifically, a few commentersbelieved that § 668.22(b)(3)(iii)(B) couldbe interpreted in different ways. First, itcould be read to mean that aninstitution must treat a student who isnot in attendance on the last day of alimited period of attendance taking as awithdrawal, even if the studentcontinued to attend classes or wasengaged in another academically-relatedVerDate Mar2010 14:10 Oct 28, 2010 Jkt 223001 PO 00000 Frm 00070 Fmt 4701 Sfmt 4700 E:\FR\FM\29OCR2.SGM 29OCR2activity after the end of the limitedperiod. Along these lines, a fewcommenters pointed out that it could bedifficult for an institution to ascertainwhether a student actually withdrew, orwhether the student was in fact onlyabsent for a class or two. Second, itcould be read to mean that if aninstitution has attendance recordsduring a limited period, the institutionmust use those attendance records, asthe best available source of information,in determining a student’s date ofwithdrawal. One commenter believedthat this interpretation could require aninstitution not otherwise required totake attendance to take attendancebeyond the end of the limitedattendance period to determine if thestudent came back. The commenterfurther requested clarification aboutwhen an institution in this situationwould have to determine that thestudent actually withdrew.Three commenters provided potentialmodifications to the language related totaking attendance during a limited timeperiod. The first suggested replacing thewords ‘‘in attendance at the end of thelimited period’’ with the words ‘‘inattendance during the limited period’’ toaccount for the fact that a student mighthave attended earlier in the limitedperiod but was only absent on that lastday, perhaps due to illness or anotherlegitimate reason. The secondcommenter recommended modifyingthe words ‘‘a student in attendance’’ toread ‘‘a student determined by theinstitution to be in attendance’’ in orderto give institutions the necessaryflexibility to determine that a studentactually withdrew from all courses andwas not just absent on that particularday. The third commenter suggestedreplacing the phrase ‘‘in attendance atthe end of the limited period’’ with ‘‘inattendance at the last regularlyscheduled class meeting prior to thecensus date’’ to account for courses thatdo not meet on the last day of thelimited period.One commenter believed that theDepartment should require institutionsto have a limited number of hours orcredits that a student may miss withouthaving to be considered a withdrawal.Discussion: Standing alone,information that a student was absenton the last date attendance was takenduring a limited period of time is thebest evidence that the student hasceased attendance. That presumption iseasily refuted when a student has goneon to complete the payment period,since the student will have earned agrade for the class. For a student whodid not complete the class, theinstitution may determine whether there