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

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

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WReier-Aviles on DSKGBLS3C1PROD with RULES266920 Federal Register / Vol. 75, No. 209 / Friday, October 29, 2010 / Rules and RegulationsDepartment monitor the application ofthis ATB option.Discussion: We appreciate the supportfor these changes. With regard to thesuggestion that the Department monitorthe use of this eligibility option, we planin 2011–2012 to implement a variety ofchanges to the data that institutions willprovide to the Department that will helpus determine when title IV, HEAprogram assistance is awarded tostudents who establish their title IV,HEA eligibility on the basis of eithersuccessfully completing six credit hours(or its equivalent) that are applicabletoward a degree or certificate programoffered at that institution, or when thestudent successfully passes an approvedATB test. We believe that this data willhelp us better understand the frequencythat these options are employed and canlead to further study on theeffectiveness of these alternatives to ahigh school diploma or its recognizedequivalent.Changes: None.Comment: Some commenters offeredconditional support for the regulatorychange reflected in § 668.32(e)(5), butexpressed some concerns. For example,one commenter expressed disagreementabout the equivalency of six credithours to six semester, six trimester, sixquarter hours or 225 clock hours. Inaddition, several commenters did notagree with the application of 225 clockhours stating that this approach wouldnot benefit students at clock hourinstitutions. Finally, a few commenterssuggested that a conversion rate of 6credit hours to 180 clock hours wouldbe more reasonable.Discussion: As discussed during thenegotiated rulemaking sessions and inthe preamble to the NPRM, the statuteis silent on equivalency. TheDepartment believes that it is areasonable interpretation to use thesuccessful completion of 6 semester, 6trimester, 6 quarter or 225 clock hoursfor purposes of equivalency becausethese all would be equal to completionof one quarter of an academic year. Forthis reason, we are adopting as final thechanges we proposed in § 668.32(e).Changes: None.Comment: A few commenters askedabout the transferability of thesuccessful completion of six credits (orits equivalent) among title IV, HEAeligible institutions. One commenterexpressed concern that it appeared thatthe courses where the six credits wereinitially earned could not be collegepreparatory coursework, because theyare not applicable to an eligibleprogram. Therefore, the commenterargued, § 668.32(e)(5) would not benefitthose students for whom ATB would bemost helpful, students who may needpreparatory coursework.Discussion: Section 484(d)(4) of theHEA specifies that a student has theability to benefit from the education ortraining offered by the institution ofhigher education if the studentcompletes six credit hours or theequivalent coursework that areapplicable toward a degree or certificateoffered by the institution of highereducation. When a student who earnssix or more credits (or their equivalent)applicable toward a degree or certificateoffered by that institution of highereducation subsequently transfers toanother institution, if those credits areapplicable toward the degree orcertificate offered by the subsequentinstitution, the previously-earnedcredits meet the requirements of section484(d) of the HEA. However, we pointout that the earning of credit hoursbased upon testing out is notcomparable to taking and successfullycompleting six credit hours (or itsequivalent) and, therefore, would notsatisfy this ATB option.If the courses that a student enrolls inare considered preparatory in nature, aninstitution must first determine whetherthese preparatory courses are a part ofthe student’s program. To the extent thatthe preparatory courses are a part of thestudent’s eligible program, thesuccessful completion of six credits inthese preparatory courses would meetthis ATB standard. However, if theinstitution determines that thesepreparatory courses are not part of theeligible program, the successfulcompletion of the six credits would notmeet this ATB standard. It may beimportant to note that generallyinstitutions develop their admissionspolicies in accordance with Statelicensing and accrediting requirementsand, as a result, some institutionaladmissions requirements may requirethat all students have a high schooldiploma. In those situations, because allof the students would be required tohave a high school diploma, therecognized equivalent of a high schooldiploma option and the ATB options insection 484(d) of the HEA would beinapplicable. However, for institutionsthat admit students either with therecognized equivalent of a high schooldiploma or under one of the optionalATB standards for students who do nothave a high school diploma, thoseinstitutions cannot fail to accept, fortitle IV, HEA student eligibilitypurposes, the following—• A student’s passing of an approvedATB test;• A determination that a student hasthe ability to benefit from the educationVerDate Mar2010 14:10 Oct 28, 2010 Jkt 223001 PO 00000 Frm 00090 Fmt 4701 Sfmt 4700 E:\FR\FM\29OCR2.SGM 29OCR2or training in accordance with anapproved State process;• A student’s successful completionof a secondary school education in ahome school setting that is treated as ahome school or private school underState law; or• The satisfactory completion of sixcredit hours (or the equivalentcoursework), that are applicable towarda degree or certificate at that institution.As such, the new ATB option addedin section 484(d)(4) of the HEA, andreflected in § 668.32(e)(5), is not theonly opportunity for a student toestablish that he or she has the abilityto benefit from the education or trainingoffered by the institution.Changes: None.Comment: One commenter expressedsupport for the inclusion of language inthe preamble to the NPRM thatindicated that the six credits or itsequivalent used to establish ATBeligibility should be applicable to aneligible program offered at that schooland suggested it should be included inthe regulatory language. Anothercommenter expressed concern about theinclusion of this language in thepreamble, opining that it went beyondthe statutory language and intent. Thiscommenter recommended that theDepartment consider removing suchlanguage in the final regulations.Discussion: We recognize that thestatute does not require that thecoursework completed for purposes ofthis ATB option be applicable to aneligible program, but we remindinstitutions that this ATB option isdesigned to allow an otherwiseineligible student to obtain title IV, HEAprogram assistance while working toobtain a certificate or degree. Therefore,we expect that the coursework beapplicable to an eligible program. Wealso acknowledge that students maychange programs throughout theirpostsecondary career. For this reason,these regulations do not require that thestudent successfully complete sixcredits or their equivalent that areapplicable to the specific degree orcertificate program in which the studentis enrolled. Instead, § 668.32(e)(5)requires only that the six credits beapplicable to a degree or certificateprogram at the institution where the sixcredits are earned.Changes: None.Comment: Several commentersexpressed opposition to the new§ 668.32(e)(5). One commenter arguedthat the ATB options under current§ 668.32(e)(2) and (e)(3) provide a bettermethod of evaluating a student’s abilityto benefit and that the new option is notneeded. One commenter stated that new

Federal Register / Vol. 75, No. 209 / Friday, October 29, 2010 / Rules and Regulations66921WReier-Aviles on DSKGBLS3C1PROD with RULES2§ 668.32(e)(5) would cause greaterfinancial hardship for students becauseit would require students to pay forthese six credits without the benefit oftitle IV, HEA program assistance andthat this, in turn, may lead to somestudents turning to high cost privatefinancing. One commenter expresseddisappointment that the Department didnot seize the opportunity to fully reevaluatethe ATB regulations and makemore broad and sweeping changes to thestandards. Finally, some commentersexpressed concern that § 668.32(e)(5)may penalize students who are very ableto successfully perform class work anddemonstrate learned skills, but whohave difficulty taking tests and thereforemay be unable to successfully completethe requisite six credit hours (or itsequivalent), due to their inability to dowell on written tests.Discussion: Section 668.32(e)(5)incorporates the language from section484(d)(4) of the HEA. The Departmentdoes not have the authority to notrecognize this statutorily mandated ATBoption. Moreover, we recognize that thisnew standard for establishing the abilityto benefit for students who do not havea high school diploma or its recognizedequivalent may not be appropriate forall students. However, we do not viewthis as a problem, because § 668.32(e)(5)supplements—rather than replaces—thecurrent standards for establishing theability to benefit under § 668.32(e)(2)and (e)(3).Changes: None.Comment: Most of the commenterswho objected to § 668.32(e)(5) objectedto this provision at least in part becausethe Department has stated that title IV,HEA funds may not be used to pay forany portion of the payment period inwhich those credits or equivalent wereearned.Discussion: The underlying studenteligibility issue here is that a studentwithout a high school diploma or itsequivalent cannot be eligible for title IV,HEA program assistance, except underthe four circumstances described insection 484(d) of the HEA. The paymentperiod during which a studentsuccessfully earns the six credits (or itsequivalent) under section 484(d)(4) ofthe HEA and § 668.32(e)(5) is a periodwhen the student has yet to meet thisstatutory requirement or standard. Werecognize that this inability to ‘‘go back’’and establish eligibility may be fiscallyproblematic for some students orinstitutions, but we continue to believethat until a student’s eligibility isestablished, the student is ineligible fortitle IV, HEA funds. That said, in caseswhere a student is enrolled in a programthat has several modules within apayment period that are independentlycompleted and graded prior to the endof that payment period, there could bea situation where a student successfullycompletes a module and earns six ormore credits (or the equivalent) prior tothe end of the payment period. In thisscenario, an institution could make adetermination of the cost of attendancefor the remaining modules in thepayment period, and award anddisburse title IV, HEA funds for thoseremaining credits, based upon thelimited cost of attendance in thepayment period after the student hassuccessfully completed the initial sixcredits.Changes: None.Comment: One commenter stated thathe would encourage other institutions toestablish admissions policies to prohibitthe use of the earned credit ATB optionreflected in § 668.32(e)(5) because of theunique complications created with thisprovision and State licensing boards.Specifically, the commenter expressedconcern that students who do notcomplete the six credit hours (or theirequivalent) under this option may notbe able to obtain title IV, HEA programassistance to pay for their coursework.Discussion: As noted earlier in thispreamble, we recognize that the ATBoption reflected in section 484(d)(4) ofthe HEA and § 668.32(e)(5) may notmeet the needs of all students, or allinstitutions, and is simply one methodby which a student can show that he orshe has the ability to benefit from adegree or certificate program of studyand, therefore, is eligible to receive titleIV, HEA program assistance.Changes: None.Subpart J—Approval of IndependentlyAdministered Tests; Specification ofPassing Score; Approval of StateProcessSpecial Definitions (§ 668.142)Comment: In response to theDepartment’s request in the NPRM forfeedback on the appropriateness ofpermitting specified test administratorsin the assessment center to train otherindividuals at that assessment center toadminister ATB tests, severalcommenters suggested that it would notbe advisable or appropriate for seniortest administrators in an assessmentcenter to perform the required trainingof other individuals at the assessmentcenter for the administration ofapproved ATB tests.Discussion: The Department agreesthat, consistent with the definition ofthe term test administrator, anindividual must be certified by the testpublisher or State, as applicable, toVerDate Mar2010 14:10 Oct 28, 2010 Jkt 223001 PO 00000 Frm 00091 Fmt 4701 Sfmt 4700 E:\FR\FM\29OCR2.SGM 29OCR2administer tests under subpart J of part668 in accordance with the instructionsprovided by the test publisher or State.The only practical way for a testpublisher or State to make adetermination of whether an individualhas the necessary training required inorder to certify the individual as a testadministrator is to provide the trainingthat will insure that test administratorsare cognizant of the test publisher’s orState’s written requirements. Toemphasize and add clarity that the testadministrator is required to be certifiedby the test publisher or State, asapplicable, when a test is given at anassessment center by a testadministrator who is an employee of thecenter, we have modified § 668.151(b)(1)by adding the word certified prior to thereference to test administrator.Changes: We have amended§ 668.151(b)(1) by adding the word‘‘certified’’ prior to the reference to testadministrator.Comment: One commenter objected tothe increased burden associated withthe proposed requirement that testadministrators at assessment centers becertified by the test publisher or State,as applicable.Discussion: During the negotiations,the Department was told about the highincidence of staff turnover at assessmentcenters. One test publisher participatingin the negotiations expressed concernthat new staff have been trained toadminister the approved ATB tests byother members of the assessment centerstaff and, as a result, were providingATB tests without being properlycertified by the test publisher or State.We agree that in order to meet the newdefinition of the term test administratorin § 668.142 and to meet the increasedstandards of training, knowledge, skillsand integrity, that it is vital for all testadministrators to be certified in order toadminister an approved ATB testconsistent with the requirements ofsubpart J of part 668 and the writteninstructions of the test provider.Moreover, we believe that the increasein burden falls mainly upon the testpublisher or the State, rather than theinstitution.Changes: None.Comment: One commenter suggestedthat we clarify the definition of the termindependent test administrator bymodifying it to clarify that anindependent test administrator cannothave any current or prior financialinterest in the institution, but that he orshe may earn fees for properlyadministering an approved ATB test atthat institution. Another commentersuggested that the definition of the term

WReier-Aviles on DSKGBLS3C1PROD with RULES266920 Federal Register / Vol. 75, No. 209 / Friday, October 29, 2010 / Rules and Regulations<strong>Department</strong> monitor the application <strong>of</strong>this ATB option.Discussion: We appreciate the supportfor these changes. With regard to thesuggestion that the <strong>Department</strong> monitorthe use <strong>of</strong> this eligibility option, we planin 2011–2012 to implement a variety <strong>of</strong>changes to the data that institutions willprovide to the <strong>Department</strong> that will helpus determine when title IV, HEAprogram assistance is awarded tostudents who establish their title IV,HEA eligibility on the basis <strong>of</strong> eithersuccessfully completing six credit hours(or its equivalent) that are applicabletoward a degree or certificate program<strong>of</strong>fered at that institution, or when thestudent successfully passes an approvedATB test. We believe that this data willhelp us better understand the frequencythat these options are employed and canlead to further study on theeffectiveness <strong>of</strong> these alternatives to ahigh school diploma or its recognizedequivalent.Changes: None.Comment: Some commenters <strong>of</strong>feredconditional support for the regulatorychange reflected in § 668.32(e)(5), butexpressed some concerns. For example,one commenter expressed disagreementabout the equivalency <strong>of</strong> six credithours to six semester, six trimester, sixquarter hours or 225 clock hours. Inaddition, several commenters did notagree with the application <strong>of</strong> 225 clockhours stating that this approach wouldnot benefit students at clock hourinstitutions. Finally, a few commenterssuggested that a conversion rate <strong>of</strong> 6credit hours to 180 clock hours wouldbe more reasonable.Discussion: As discussed during thenegotiated rulemaking sessions and inthe preamble to the NPRM, the statuteis silent on equivalency. The<strong>Department</strong> believes that it is areasonable interpretation to use thesuccessful completion <strong>of</strong> 6 semester, 6trimester, 6 quarter or 225 clock hoursfor purposes <strong>of</strong> equivalency becausethese all would be equal to completion<strong>of</strong> one quarter <strong>of</strong> an academic year. Forthis reason, we are adopting as final thechanges we proposed in § 668.32(e).Changes: None.Comment: A few commenters askedabout the transferability <strong>of</strong> thesuccessful completion <strong>of</strong> six credits (orits equivalent) among title IV, HEAeligible institutions. One commenterexpressed concern that it appeared thatthe courses where the six credits wereinitially earned could not be collegepreparatory coursework, because theyare not applicable to an eligibleprogram. Therefore, the commenterargued, § 668.32(e)(5) would not benefitthose students for whom ATB would bemost helpful, students who may needpreparatory coursework.Discussion: Section 484(d)(4) <strong>of</strong> theHEA specifies that a student has theability to benefit from the education ortraining <strong>of</strong>fered by the institution <strong>of</strong>higher education if the studentcompletes six credit hours or theequivalent coursework that areapplicable toward a degree or certificate<strong>of</strong>fered by the institution <strong>of</strong> highereducation. When a student who earnssix or more credits (or their equivalent)applicable toward a degree or certificate<strong>of</strong>fered by that institution <strong>of</strong> highereducation subsequently transfers toanother institution, if those credits areapplicable toward the degree orcertificate <strong>of</strong>fered by the subsequentinstitution, the previously-earnedcredits meet the requirements <strong>of</strong> section484(d) <strong>of</strong> the HEA. However, we pointout that the earning <strong>of</strong> credit hoursbased upon testing out is notcomparable to taking and successfullycompleting six credit hours (or itsequivalent) and, therefore, would notsatisfy this ATB option.If the courses that a student enrolls inare considered preparatory in nature, aninstitution must first determine whetherthese preparatory courses are a part <strong>of</strong>the student’s program. To the extent thatthe preparatory courses are a part <strong>of</strong> thestudent’s eligible program, thesuccessful completion <strong>of</strong> six credits inthese preparatory courses would meetthis ATB standard. However, if theinstitution determines that thesepreparatory courses are not part <strong>of</strong> theeligible program, the successfulcompletion <strong>of</strong> the six credits would notmeet this ATB standard. It may beimportant to note that generallyinstitutions develop their admissionspolicies in accordance with Statelicensing and accrediting requirementsand, as a result, some institutionaladmissions requirements may requirethat all students have a high schooldiploma. In those situations, because all<strong>of</strong> the students would be required tohave a high school diploma, therecognized equivalent <strong>of</strong> a high schooldiploma option and the ATB options insection 484(d) <strong>of</strong> the HEA would beinapplicable. However, for institutionsthat admit students either with therecognized equivalent <strong>of</strong> a high schooldiploma or under one <strong>of</strong> the optionalATB standards for students who do nothave a high school diploma, thoseinstitutions cannot fail to accept, fortitle IV, HEA student eligibilitypurposes, the following—• A student’s passing <strong>of</strong> an approvedATB test;• A determination that a student hasthe ability to benefit from the educationVerDate Mar2010 14:10 Oct 28, 2010 Jkt 223001 PO 00000 Frm 00090 Fmt 4701 Sfmt 4700 E:\FR\FM\29OCR2.SGM 29OCR2or training in accordance with anapproved State process;• A student’s successful completion<strong>of</strong> a secondary school education in ahome school setting that is treated as ahome school or private school underState law; or• The satisfactory completion <strong>of</strong> sixcredit hours (or the equivalentcoursework), that are applicable towarda degree or certificate at that institution.As such, the new ATB option addedin section 484(d)(4) <strong>of</strong> the HEA, andreflected in § 668.32(e)(5), is not theonly opportunity for a student toestablish that he or she has the abilityto benefit from the education or training<strong>of</strong>fered by the institution.Changes: None.Comment: One commenter expressedsupport for the inclusion <strong>of</strong> language inthe preamble to the NPRM thatindicated that the six credits or itsequivalent used to establish ATBeligibility should be applicable to aneligible program <strong>of</strong>fered at that schooland suggested it should be included inthe regulatory language. Anothercommenter expressed concern about theinclusion <strong>of</strong> this language in thepreamble, opining that it went beyondthe statutory language and intent. Thiscommenter recommended that the<strong>Department</strong> consider removing suchlanguage in the final regulations.Discussion: We recognize that thestatute does not require that thecoursework completed for purposes <strong>of</strong>this ATB option be applicable to aneligible program, but we remindinstitutions that this ATB option isdesigned to allow an otherwiseineligible student to obtain title IV, HEAprogram assistance while working toobtain a certificate or degree. Therefore,we expect that the coursework beapplicable to an eligible program. Wealso acknowledge that students maychange programs throughout theirpostsecondary career. For this reason,these regulations do not require that thestudent successfully complete sixcredits or their equivalent that areapplicable to the specific degree orcertificate program in which the studentis enrolled. Instead, § 668.32(e)(5)requires only that the six credits beapplicable to a degree or certificateprogram at the institution where the sixcredits are earned.Changes: None.Comment: Several commentersexpressed opposition to the new§ 668.32(e)(5). One commenter arguedthat the ATB options under current§ 668.32(e)(2) and (e)(3) provide a bettermethod <strong>of</strong> evaluating a student’s abilityto benefit and that the new option is notneeded. One commenter stated that new

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