Committee IV Institutional Eligibility Issues

Third Meeting
April 8-10, 1999
Washington, DC

The third meeting of Committee IV commenced as scheduled at approximately 1:30 p.m. on Thursday, April 8, 1999, and adjourned on Saturday, April 10 at approximately 3:30 p.m. The meeting was held at Department of Education offices in Federal Office Building 6. The meeting was facilitated by and this meeting summary was written by Greg Bourne and Greg Sobel.

The meeting began with the facilitators and spokespersons introducing themselves. Next the facilitators provided an overview of activities since the last meeting and the proposed agenda for this meeting. In particular, the Accreditation, Crime Log and Privileged Information Subcommittees all had met and were prepared to report their progress to the Committee.

The primary focus of this meeting was to hear and review reports from the Subcommittees and respond to draft negotiating text and related materials prepared by the Department and other Committee members since the last meeting.

The Department began the meeting with a review of the four "packages" of regulations being developed by the Committee. The Department proposed a process whereby each package is completed and then transmitted to the Federal Register. The idea is to stagger the regulations since the Federal Register cannot publish all the new regulations at the same time. As Committee members pointed out, however, they expected to see the complete set of regulations being considered before "final" approval is given to any regulations. On the other hand, the Committee agreed that if they can reach agreement on a "package" of regulations which is not intertwined with other regulations, then the Department can proceed with promulgation.

This led to the issue of negotiating preamble language. The Department conveyed its view that preambles should be prepared for review and comment during the regulatory negotiation, but that they should not to be negotiated. When questioned by some Committee members about statutory interpretations and protocols, the Department responded that its position meets these criteria.

The key issue is making sure that critical issues are addressed in the regulations rather than leaving them to the preamble. Some Committee members remained concerned about their ability to reach agreement on the content of preamble language.

The next agenda item was a report from the Accreditation Subcommittee. Subcommittee members reported significant progress on draft negotiating text. They are continuing to work on the 12-month rule and the definition of branch campuses. Areas of agreement and major issues on remaining provisions are highlighted in Attachment I.

Before presentations by the subcommittees on issues related to campus crime, approval of the second meeting summary was sought. A few minor corrections were agreed upon and incorporated into the Final Meeting Summary. One change was noted related to Section 668.41 - Reporting and Disclosure of Information. The Department had already made some minor refinements to this section including re-ordering paragraphs and changing "and/or" before "electronic media" to "or." The Committee also agreed to adding a disclaimer to the summaries to emphasize the preliminary nature of any agreements reached at this point in the process.

After brief reports from the Crime Log and Privileged Information Subcommittees, the Committee considered the regulatory provisions related to campus crime reporting. After this, the Committee moved through the remaining "packages" of regulatory provisions and discussed each in turn.

During additional discussions of branch campus definitions, the Committee formed a Subcommittee to try to work through the outstanding issues. The Subcommittee includes: Ken Babcock, Ellen Blackman, Bud Blakey, Nancy Broff, Ed Elmendorf, Carol Fuller, Dan Klock, Steve Kraut, Cheryl Leibovitz, Cyndy Littlefield, Linda Michalowski, Mark Pelesh and Roger Williams. The Subcommittee will work in concert with the Accreditation Subcommittee which is also considering certain aspects of this issue.

Concerning Section 668.48, Athletic Program Participation, the Committee heard comments from some Committee members and then Doris Dixon representing the NCAA. She provided a handout to the Committee, which decided to postpone further discussion of the issues until members had the opportunity to review the proposals. These provisions will be taken-up at the next meeting.

After reviewing the four packages of regulations, the question was posed about the status of issues discussed at the first Committee meeting, specifically the issues of: 1) third party financial guarantees, 2) financial guarantees from owners for failure to pay refunds, 3) remedying administrative, accounting or record keeping errors, and 4) levels of penalties. The Department's current thinking is that regulations are not needed in these areas while some other Committee members feel regulations are needed. The Department said it would consider the discussion and report back to the Committee at the next meeting.

The next meeting of the full Committee will convene Wednesday, May 5, 1999, at 1:30 p.m., and adjourn on Friday, May 7 by 5:00 p.m. The Accreditation Subcommittee will meet on the morning of May 5. The Committee meeting will be held at Department of Education offices in Federal Office Building 6, located at 400 Maryland Avenue, S.W. The Department promised to provide exact locations for Committee and Subcommittee meetings to all Committee and Subcommittee members during April. {At the time of conveying this Meeting Summary, it has been determined the Committee will meet in Room 1E110 on May 5, and in the Barnard Auditorium on May 6 and 7.}

The agenda for May 5 is to discuss and finalize agreements, to the extent possible, on accreditation and campus crime reporting issues: accreditation from 1:30 p.m. until 3:00 p.m. and campus crime from 3:30 p.m. until 5:00 p.m. Discussion of accreditation and campus crime reporting issues will conclude Wednesday afternoon. May 6 and 7 will be devoted to all remaining issues.

---

NOTE: AT THIS STAGE OF THE PROCESS ALL AGREEMENTS NOTED IN THE MEETING SUMMARY AND ATTACHMENT I ARE PRELIMINARY. THE COMMITTEE WILL DETERMINE ITS FINAL AGREEMENTS ONLY AFTER ALL PROVISIONS HAVE BEEN THOROUGHLY CONSIDERED.

---

ATTACHMENT I

Preliminary agreements on Committee IV negotiating text, listed by section of regulations, based on discussions held April 8-10, 1999.

Accreditation Issues

Section 602.3 Definitions

The definitions requiring further consideration are additional location, branch campus, distance education, representative of the public, and scope of recognition.

The Committee had no major concerns dealing with Sections 602.11 through 602.20, with the following exceptions: under 602.12 (a)(2) the period of two years prior to seeking recognition should be discussed further; under 602.16 (a)(1), the Department will consider using the preamble to explain the emphasis on student achievement.

Committee members had several comments on 602.21, including:

1. (a) and (b) - the phrase "valid and reliable" has no statutory basis
2. (a)(3) - students should be considered part of relevant constituencies
3. (b) - "establish the new standard within 12 months" should be considered further
4. (b) - how will agencies determine that a standard is not "valid or relevant" to the needs of students?

The Committee had no major concerns with the remaining Sections 602.22 through 602.28 with the following exception related to 602.26: greater weight should be given to formal actions.

The Committee had no major concerns with Subparts C and D, which are re-writes of existing regulations using plain language guidelines.

Sec. 668.47 Institutional Security Policies and Crime Statistics

The Committee agreed to the proposed language for the definition of Business Day.

The Committee agreed with the proposed language for the definition of Campus with one possible addition: change "...area of the institution..." to "...area identified in (1) above..."

Under Noncampus Building or Property, the Committee agreed with proposed language under (1), with one possible modification: change "organization recognized" to "organization officially recognized." Under (2), the Committee agreed to wait until definitions of branch campus, additional locations, etc. are worked out in either the Accreditation Subcommittee or the Branch Subcommittee.

Campus Definition Subcommittee.

The Committee agreed to simplify the language under Public Property, using the following proposed language as the starting point: "All public travelways, such as sidewalks, streets and parking facilities, which are immediately adjacent to and accessible from any facility owned or controlled by the institution that is used in direct support of or in a manner related to the institution's educational purposes, and is located (a) on the main campus or a branch campus of the institution, or (b) within the same reasonably contiguous geographic area as the main campus or a branch campus of the institution."

Under Campus Security Authority, the Committee agreed to consider adding the sentence to the end of (1) to the effect of: "The institution shall disclose if they have a police/security department." The Committee agreed with proposed language under (2), and suggested deleting the last phrase under (3) beginning, "...including, but not limited to,..."

The Committee agreed with the proposed definition of Pastoral Counselor.

The Committee agreed with the proposed definition of Professional Counselor, with one modification: change "...whose primary responsibility..." to "...whose official responsibility..."

Under Referred for Campus Disciplinary Action, the Committee agreed to change "Written referral" to "Referral"; after "student" the Department will consider more specific language such as "for a violation of law."

The Committee had no major concerns with proposed language for (b) What must be included in the Annual Security Report. The following language was suggested for use in the preamble: "An institution's annual security reports due October 1, 1999, October 1, 2000 and October 1, 2001, must contain the statistics as described in (c) covering the most recent calendar year and the two proceeding calendar years, or the portion thereof for which the breakdown of the statistics by category of locations is reasonably available."

Committee members made several recommendations under (c) What crime statistics must be reported?:

1. under (1) agreement with proposed language with one addition to be considered by the Department: under (1)(viii), add the language "If an incident results in an arrest and disciplinary action, the statistics must be recorded under the arrest statistics only;" the Department may recommend putting this in the preamble.
2. under (2) consider the following modifications: change "...campus authority, and in which the victim..." to "...campus authority, that manifest evidence of prejudice and in which the victim..."; add the following sentence to the end of the paragraph, "Institutions should use the FBI Training Guide for Hate Crime Data Collection for appropriate guidance in classifying these reports."
3. under (3) general agreement with the proposed language
4. under (4) agreement with proposed language
5. for (5) the Department will rephrase this paragraph to avoid emphasis on the victim; the new language under (5) could begin: "The institution is not required to report..."
6. the Department will consider the following proposed language under (6), "The crime and arrest statistics required under paragraphs (c)(1) and (2) shall be compiled in accordance with the definitions and standards used in the Uniform Crime Reporting system of the Department of Justice, Federal Bureau of Investigation, as provided in Appendix E. All crime and arrest statistics shall be compiled in accordance with the procedures set forth in the FBI's Uniform Crime Reporting Handbook and UCR Hate Crime Data Collection Guidelines. The numbers of persons referred for disciplinary action shall be compiled in accordance with the UCR procedures for arrest statistics."
7. Committee members who support use of the map accept the proposed language; however, reservations about using the map still need to be resolved
8. under (8) the Department will consider changing "...an institution may use..." to "...an institution must use..." Members of the Committee asked for "safe harbor" from liability for situations where an institution is unable to obtain the required or accurate information from appropriate law enforcement institutions; if this is not addressed in the regulations then perhaps in the preamble; the language should be stated in the positive rather than negative to make it more easily understood.

Under (e), the Committee agreed with deleting the second sentence of the language proposed.

The Committee generally concurred with the following proposed modifications to (h) Crime Log:

1. use the date reported rather than the date of occurrence
2. the log should be open for public inspection during normal business hours only
3. the most immediate 60 days must be made immediately available; after 60 days provide within two days of a request
4. the geographic area covered by crime logs should include campus, non-campus buildings and property, public property and all other areas within the jurisdiction of the campus security department.

Under definitions, the regulations need to include "negligent manslaughter."

Section 668.41 Reporting and Disclosure of Information

The Committee expressed appreciation for this section which incorporates most reporting and disclosure information in one place. The following suggestions were also made:

1. the distinction between an electronic posting (e.g., Website) and e-mail needs to be made; the Department agreed to make this modification in the next draft
2. under (b)(1)(i), the Department said it would consider providing a brief example of what it means to "describe" disclosures related to information on a Website (possibly in the preamble).
3. the Department suggested adding some headings to help direct readers to appropriate sections (e.g., enrolled v. prospective students).
4. under (e)(3), the Department will consider revising the proposed language to address requested changes: add "prospective" before employees; change "...provide its annual security report..." to "...provide a full copy of its annual security report..."; change "...a copy of the report..." to "...a copy of the full report..."

The Committee agreed with the proposed language and deletions under (f), (g) and (h).

Section 668.44 Institutional Information

The Committee agreed with proposed language, and deletions, under (a) and (b).

Section 668.46 Information on Completion or Graduation Rates

The Committee agreed with proposed language under (a), (b), (c), (d) and (e) with the following comments:

1. the transfer-out rate goes beyond what is in the statute, so it should be reconsidered
2. two options should be developed for different types of institutions
3. define "substantial preparation"
4. in (5) change "disclose" to "make available."

Section 668.49 Report on Completion or Graduation Rates for Student-Athletes

The Committee agreed with the language proposed for this section with one exception: the transfer-out rate goes beyond what is in the statute, so it should be reconsidered.

Package I

Section 600.8 Treatment of a Branch Campus

The Committee agreed with the proposed language.

Sections 600.5 and 600.6

The Committee agreed with the proposed language and deletions under (b)(3)(i) of both sections.

Section 600.2 Definition of a State

The Committee agreed with the proposed language.

Section 600.5 Proprietary Institution of Higher Education

The Committee had extensive discussions on how the 90/10 calculation is figured, and what goes into the calculation, including what is or is not considered income to the institution. Significant differences exist on this issue and will be discussed further.

The Committee agreed that under (b)(3)(i), "...was certified..." should be changed to "...has been certified..."

The Committee discussed the implications of using a cash basis of accounting in (d).

The Committee discussed extensively the issue of when Non-Title IV funds should be considered to have been used for institutional charges. The Department said it would consider the list of Non-Title IV funds identified by Committee members that could be available for paying institutional charges in lieu of Title IV funds.

Some Committee members suggested that the current statute should be reviewed related to additional exclusions under (e).

Some Committee members suggested that the new (h) does not appear consistent with the statute and should be modified. The Department will consider this further, including whether "binding" rather than "initial" arbitration is the correct choice of terms.

Sec. 600.7 Conditions of Institutional Eligibility (Percentage of Incarcerated Students)

The Committee generally agreed with the proposed language for this section, subject to some minor grammatical corrections to be made.

Sec. 600.55 Foreign Veterinary Schools

The Committee agreed with the proposed changes in this section; however, the Department indicated it would consider addressing Foreign Veterinary Schools in a separate section from that addressing Foreign Medical Schools.

Package III

Sec. 668.14 Program Participation Agreement (Default Management Plan Waiver)

The Committee agreed with the proposed language in this section with the following suggested modification: under (15)(ii)(A), (16)(ii)(A) and (16)(ii)(B) the phrase "..., nor additional location" should be deleted. The Department agreed to consider this change.

The Committee agreed with the proposed language for provisions dealing with Voter Registration.

Sec. 668.XX Waiver of Annual Audit Requirement

The Committee generally agreed with the proposed language with the following exceptions:

1. some Committee members would like to give further thought to (a)(3)(i)
2. some Committee members questioned the need for the requirement of three years under (b)(4)
3. after discussion, the Department agreed to consider some time limit under (b)(7).
4. some Committee members asked that (d)(3) be deleted; the Department said it would evaluate this suggestion.
5. the Department said it would evaluate allowing schools that do not meet all of the proposed requirements in (b) to obtain the waiver by posting a higher (50%) letter of credit.

Sec. 493(g) Provisional Certification for Change in Ownership

In response to the question of whether to incorporate temporary provisions in regulations, the Committee agreed that these provisions should be included as regulations.

[ Return to Information Related to the Four Negotiated Rulemaking Committees ]

	Printable view Share this page