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ED Releases Proposed Rules on General and Non-Loan Programmatic Issues

August 21, 2009

On August 21, the Department of Education (ED) released a set of proposed rules related to general and non-loan issues from the Higher Education Opportunity Act (HEOA). Topics addressed include campus safety provisions, peer-to-peer file sharing, consumer information, Federal Work Study programs, readmission of servicemembers, and year-round Pell Grants.

Key provisions that may be of interest to business officers include:

Campus Safety Provisions

HATE CRIMES. The HEOA also expanded the list of hate crimes that institutions must report to ED to include larceny-theft; simple assault; intimidation; and destruction, damage, or vandalism of property.

EMERGENCY REPORTING AND EVACUATION PROCEDURES. The HEOA requires institutions to include a statement of policy regarding emergency response and evacuation procedures in their annual security report and describe how they will test their emergency response and evacuation procedures. This requirement will begin with the annual security report distributed October 1, 2010. Through negotiated rulemaking, "test" has been defined as "regularly scheduled drills, exercises, and appropriate follow-through activities, designed for assessment and evaluation of emergency plans and capabilities."

MISSING PERSON PROCEDURE. An institution that maintains an on-campus student housing facility must include its missing student notification policy and procedures in its annual security report, also beginning with the report distributed October 1, 2010. Students should be notified that they can confidentially register an individual to be contacted should they be determined as missing. The policy should also include a requirement that any missing student report be immediately referred to the institution's police, campus security, or the local law enforcement. If a missing student is under 18 and not emancipated, the institution will notify a parent/guardian in addition to any person designated by the student.

FIRE SAFETY STANDARDS. Institutions that maintain on-campus student housing facilities will be required to publish a fire and safety report each year and submit a copy to ED. An institution may publish its annual fire safety report and annual security report together, as long as the document's title states that it contains both reports and both reports receive equal emphasis. Fire safety reports should include data for the three most recent calendar years. Several proposed definitions, including "fire-related injury," "fire-safety system," and others, are included to enable comparability across institutions. The report should include fire statistics (number of fires, cause of fires, number of injuries, number of deaths, and value of property damage); a description of each housing facility; the number of fire drills held during the previous year; policies regarding electrical appliances, smoking, and open flames in housing facilities; evacuation procedures; fire safety education policies; plans for safety improvements; and a list of persons or organizations to which students/employees should report a fire. Lastly, the proposed rules would require institutions with on-campus housing to maintain a fire log that records the nature, date, time, and location of each fire that occurred in an on-campus housing facility.

Peer-to-Peer File Sharing and Copyrighted Material

Proposed rules also require an institution, as a condition of participation in a Title IV program, to agree that it 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.

The institution shall include in student publications (handbooks, code of conduct, etc.) the institution's policies and sanctions related to the unauthorized distribution of copyrighted material. These shall include:

  1. an annual disclosure of the possible civil and criminal liabilities associated with unauthorized distributions of copyrighted materials including peer to peer file sharing,
  2. a summary of penalties for violation of Federal copyright laws, and
  3. the disciplinary actions by the institution for such violations using the institutions information technology.

The institutional plan would include the use of one or more technology-based deterrents, methods for educating students about appropriate versus inappropriate use of copyrighted material (including information in student handbooks, honor codes, and codes of conduct), procedures for handling unauthorized distribution of copyrighted material, and procedures for reviewing the plan. Proposed regulations make it clear that no particular technology measures are favored or required.

Further, the proposed regulations call for, to the extent practible, the institution to offer legal alternatives to illegal downloading of copyrighted material.

Consumer Information

The HEOA expanded the list of consumer information that institutions are required to make available to prospective and enrolled students. Now, institutions must include the placement and types of employment obtained by graduates of the institution; the types of graduate and professional education in which graduates of the institution's four-year degree programs enrolled; and the retention rates (as reported to the Integrated Postsecondary Education Data System [IPEDS]) of the certificate- or degree- seeking, first-time, full-time, undergraduate students entering the institution.

For both placement information and the types of graduate/professional education graduates enrolled, the institution will have to identify the source of information it discloses, time frames, and methodology associated with that information. Completion and graduation information must be disaggregated by gender; racial and ethnic subgroups; and whether the students received certain types of federal aid, including Pell Grants, Federal Family Education Loans, and Federal Direct Loans (other than an Unsubsidized Stafford Loan), provided the number of students in each category is sufficient to yield statistically significant information.

Federal Work-Study Programs

ED has proposed three changes to conform the Federal Work Study (FWS) payment regulations with existing cash management regulations. First, the amount of prior award year charges that could be paid with current award year FWS funds would increase to not more than $200. Second, the FWS provision that allows an institution to pay for prior award year charges of $100 or more would be removed. Finally, ED would clarify that the $200 limit applies to all Title IV, HEA program funds that an institution uses to pay prior-year charges.

Proposed regulations regarding electronic disbursements would remove the FWS requirement that an institution obtain a student's written authorization to make an electronic funds transfer (EFT) payment and add a provision allowing an institution to issue a stored-value card. Further, the proposed regulations continue the current requirement that an institution must obtain a student's written authorization to credit FWS compensation to a student's account at the institution. Regulations would also allow an institution to establish a policy requiring students to provide bank account information or open an account at a bank of his/her choosing, as long as the policy doesn't delay the disbursement of FWS earnings. Institutions are not allowed to refuse to hire a student or to fire a student who does not comply with this policy.

Also related to FWS, the authorization required to credit a student's account at the institution or the authorization required to hold a credit balance for the student can now be combined with other authorizations, relieving burdens on both the student and institution. Finally, under proposed rules, institutions in any area affected by a major disaster would be able to make FWS payments for up to one year to students who are prevented from fulfilling their FWS work obligations due to the disaster.

Readmission for Servicemembers

Proposed rules state that an institution may not deny readmission to a servicemember and must readmit the servicemember to the same program (or similar program if the previous program is no longer offered) with the same academic status as the student had when last admitted to the institution. Further, the student will be admitted at the same enrollment status, the same number of credit hours, and the same academic standing last held at the institution.

The rules would require that, if the student is readmitted to the same program, for the first academic year in which the student returns, the institution would have to assess the same institutional charges that the student had or would have been assessed for the academic year during which the student left. If the student is admitted to a different program, and for subsequent academic years for a student admitted to the same program, the institution would assess no more than the institutional charges that other students in the program are assessed for that academic year. Additionally, charges would be waived for equipment required in lieu of equipment the student paid for when previously enrolled.

Year-Round Pell

To encourage students to accelerate their program of study and complete it within a shorter time period than is regularly scheduled, proposed rules would allow a student to be eligible for a second scheduled Pell Grant award if he or she has earned a full year's credits in an award year and is enrolled as at least a half-time student in that same award year.

NACUBO encourages members to read and comment to ED on the NPRM by September 21, 2009. The NPRM can be found in the Federal Register.


Anne Gross
Vice President, Regulatory Affairs