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

Federal Register / Vol. 75, No. 209 / Friday, October 29, 2010 / Rules and Regulations66901WReier-Aviles on DSKGBLS3C1PROD with RULES2is evidence that the student wasacademically engaged in the class at apoint after the limited period whenattendance was taken. Unless aninstitution demonstrates that awithdrawn student who is not inattendance at the end of the limitedperiod of required attendance takingattended after the limited period, thestudent’s withdrawal date would bedetermined according to therequirements for an institution that isrequired to take attendance. That is, thestudent’s withdrawal date would be thelast date of academic attendance, asdetermined by the institution from itsattendance records. If the institutiondemonstrates that the student attendedpast the end of the limited period, thestudent’s withdrawal date is determinedin accordance with the requirements foran institution that is not required to takeattendance. So, for a student theinstitution has determined attended pastthe limited period and has unofficiallywithdrawn, the student’s withdrawaldate is the midpoint of the paymentperiod of period of enrollment unlessthe institution uses a later date whenthe student was academically engagedin the class. The institution thereforehas the option to document a student’slast date of attendance at anacademically-related activity, but aninstitution is not required to takeattendance past the end of the limitedperiod of attendance taking.We do not interpret a requirement totake attendance in one class for a‘‘census date’’ as taking attendance forpurposes of this regulation. Forexample, some institutions have coursesthat meet only on Mondays andWednesdays, and other courses thatmeet on Tuesdays and Thursdays. Inthose cases, a ‘‘census date’’ may betaken on two different days in order toestablish attendance in both sets ofcourses that meet on alternate days.With respect to the suggestion that aninstitution be permitted to have a policyto establish a different procedure orpresumption for a student who is absentat the end of a limited period ofattendance taking, this is addressed inpractice by having the institutiondetermine if the student participated inan academically related activity at alater point in the payment period, notby adding a regulation that otherwiseignores an absence on the last dateattendance was taken for the student.Changes: None.Comment: A few commentersbelieved that the proposed regulationswould cause a greater financial burdenfor a student who withdraws fromcourses prior to the midpoint of thesemester. A few commenters noted thatinstitutions that voluntarily maintainattendance records would now have touse those records to determine thestudent’s actual last date of attendanceinstead of using a midpoint date. In thecase of clock-hour institutions,commenters were concerned thatinstitutions would be required to use anactual last date of attendance instead ofa scheduled last date of attendance. Inthese situations, a student might receivefewer funds to cover costs incurred forthe entire payment period, even if he orshe withdrew before the end of thatpayment period.Discussion: The Departmentrecognizes that using an actual last dateof attendance instead of a midpoint ofthe semester may require an institutionto return more unearned aid; thisoutcome, however, is equitable. Forinstitutions using credit hours that aredetermined to be required to takeattendance for all or a part of the period,the regulation may establish an earlierdate of withdrawal for a student thatstops attending during a period whenattendance is taken. This outcomeprovides a more consistent treatmentwith other institutions that haveprograms where student progress istracked by measuring clock hours, andmore closely tracks the requirements inthe law that students earn title IV fundsas they progress through a period untilthey complete more than 60 percent ofthe period. Institutions are responsiblefor determining the amount of title IV,HEA program assistance that a studentearned under the applicable regulations,and unearned funds for a student mustbe returned in accordance with theprocedures in § 668.22. By establishinga more accurate date a student ceasedattendance during a period whenattendance is taken, the regulation willtend to increase the amount of unearnedfunds that are used to reduce the loanamounts students received for thatperiod under § 668.22(i).Changes: None.Comment: A number of commentersfrom cosmetology schools believed thatthe proposed regulations would putsome institutions in a position of beingunable to comply with both Federal andState regulations. Specifically, theywere concerned that the proposedregulations would require institutionsthat are credit-hour institutions tobecome clock-hour institutions if theytake attendance, forcing them,depending on individual State laws, tobe out of compliance with Staterequirements that those institutions usecredit hours.Discussion: We do not agree that theseregulations create a conflict betweenFederal and State laws. Institutions thatVerDate Mar2010 14:10 Oct 28, 2010 Jkt 223001 PO 00000 Frm 00071 Fmt 4701 Sfmt 4700 E:\FR\FM\29OCR2.SGM 29OCR2use clock hours for a program for Statereporting or licensing purposes will betreated as institutions that are requiredto take attendance under this regulation,and the clock hours attended will beused to determine when a studentceased attendance. To the extent thatsuch an institution uses credit hours forits academic purposes, that institutionwill not be affected by this regulation.The requirement to determine theamount of aid a student earned beforeceasing attendance is separate from thequestion of whether that institution usescredit hours for academic purposes. Theclock hours are used to measure theamount of funds a student earned, thesame way that other institutions that arerequired to take attendance willmeasure earnings under this regulation.Changes: None.Comment: A few commenterssuggested modifications to theregulatory language that would requireinstitutions to use the best informationavailable in determining a student’swithdrawal date. Specifically, onecommenter recommended amending§ 668.22(c) to make the midpoint of thepayment period the ‘‘last resort’’ optionfor determining a student’s last date ofattendance when a student unofficiallywithdraws such that a school would berequired to use the midpoint of thepayment period only in the absence ofother documentation of a student’sattendance. Another commenterrecommended that we requireinstitutions to use the best availabledata when determining a withdrawaldate instead of allowing schools that arenot required to take attendance to use adefault date of the midpoint of thepayment period of period of enrollment.The commenter believed that using thislanguage would best support theDepartment’s goals.Discussion: We do not believe that thesuggested modifications are supportableunder the HEA because the requirementto use attendance information is onlyapplicable for periods when attendancetaking is required. Under section484B(c)(1) of the HEA, if a student stopsattending an institution at a point whereattendance taking is not required, theinstitution uses the midpoint of thepayment period, or may use a later datewhen the student was participating inan academically related activity.Changes: None.Comment: One commenter wasconcerned that if an institution that isrequired to take attendance did not havea valid ISIR before a student’s last dateof attendance, the student would beunintentionally penalized and unable toreceive title IV, HEA programassistance.