[Federal Register Volume 59, Number 28 (Thursday, February 10, 1994)] [Unknown Section] [Page 0] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 94-2863] [[Page Unknown]] [Federal Register: February 10, 1994] _______________________________________________________________________ Part III Department of Education _______________________________________________________________________ 30 CFR Part 600 Institutional Eligibility Under the Higher Education Act of 1965, as Amended; Proposed Rule DEPARTMENT OF EDUCATION 34 CFR Part 600 RIN 1840-AB87 Institutional Eligibility Under the Higher Education Act of 1965, as Amended AGENCY: Department of Education. ACTION: Notice of proposed rulemaking. ----------------------------------------------------------------------- SUMMARY: The Secretary proposes to amend the regulations governing institutional eligibility under the Higher Education Act of 1965, as amended (HEA). The proposed regulations would implement new HEA statutory provisions that were added by the Higher Education Amendments of 1992 and the Higher Education Technical Amendments of 1993. In general, these new statutory provisions tightened the eligibility requirements for institutions participating in the student financial assistance programs authorized under Title IV of the HEA (Title IV, HEA programs). The proposed regulations also would clarify existing provisions, and, in keeping with the statutory changes, tighten procedures governing institutional eligibility determinations. DATES: Comments must be received on or before March 14, 1994. ADDRESSES: All comments concerning these proposed regulations should be addressed to Cheryl Leibovitz, U.S. Department of Education, 400 Maryland Avenue, SW. (Regional Office Building 3, room 4318), Washington, DC 20202-5346. A copy of any comments that concern information collection requirements should also be sent to the Office of Management and Budget at the address listed in the Paperwork Reduction Act section of this preamble. FOR FURTHER INFORMATION CONTACT: Cheryl Leibovitz. Telephone: (202) 708-7888. Individuals who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800- 877-8339 between 8 a.m. and 8 p.m., Eastern time, Monday through Friday. SUPPLEMENTARY INFORMATION: The Higher Education Amendments of 1992, Public Law 102-325 and the Higher Education Technical Amendments of 1993, Public Law 103-208, amended the HEA in several areas relating to institutional eligibility. These areas include, among others: The definition and treatment of a ``branch campus,'' a ``correspondence course,'' and a ``telecommunications course;'' the enrollment of incarcerated students and ability-to-benefit students; the percentage of its revenues that an eligible proprietary institution of higher education can derive from Title IV, HEA program funds; and the filing of an institution for bankruptcy. The Secretary discusses each of these subjects in more detail later in the preamble. These proposed regulations were subject to a regulations negotiation process as required by section 492 of the HEA. Under that process, the Secretary convened four regional meetings to obtain public involvement in the development of these proposed regulations. These meetings were held in San Francisco, Atlanta, New York, and Kansas City. At these meetings, the Secretary provided attendees with a list of issues that needed to be addressed in these proposed regulations. A summary of the responses of the attendees is contained in Appendix A to these proposed regulations. Groups that attended the regional meetings nominated individuals to participate in regulation negotiations. The Secretary selected regulation negotiators from the names nominated and chose negotiators to reflect all the groups that participate in the Title IV, HEA programs, such as students, student financial aid administrators, and various types of eligible institutions. In accordance with section 492(b) of the HEA, the Secretary prepared draft proposed regulations and negotiated the provisions of that draft with the negotiators. Consensus was reached regarding Sec. 600.7(c)(3)(ii), the proposed requirement for a degree-granting institution to demonstrate a 50% completion rate for incarcerated students enrolled in the institution's nonassociate or nonbachelor degree programs if the institution wishes to qualify those programs for a waiver from the provision that limits an institution's enrollment of incarcerated regular students to less than 25 percent. This and other related provisions are discussed in greater detail in the discussion on Sec. 600.7. The remaining regulatory provisions reflect the agreement of the great majority of the negotiators. The following discussion reflects proposed significant changes to the existing Institutional Eligibility regulations. Proposed changes are discussed in the order in which they appear in the proposed regulations text. If a provision applies to more than one section or is included in more than one section, it is discussed the first time it appears with an appropriate reference to its other appearances. Section 600.2 Definitions ``Award year.'' The Secretary proposes to this definition to these regulations from the Student Assistance General Provisions regulations because the term ``award year'' now applies to these regulations as well. ``Branch campus.'' Section 498(j) of the HEA directs the Secretary to define this term. For consistency, the Secretary proposes to adopt the existing definition set forth in 34 CFR 607.7(b) of the Strengthening Institutions Program regulations authorized under Title III, Part A, of the HEA. ``Correspondence course'' and ``telecommunications course.'' The definition of a telecommunications course essentially restates the statutory definition contained in section 484(m)(4) of the HEA. As provided in section 484(m)(1) of the HEA, as a general rule a telecommunications course is not considered a correspondence course. However, as further indicated in that section, a telecommunications course offered at an institution would be considered a correspondence course if the sum of telecommunications courses and correspondence courses offered by the institution equals or exceeds 50 percent of the total courses offered at the institution. In addition, as reflected in section 484(m)(4) of the HEA, a home study course that is offered by an institution through video cassette or video disc recordings in an award year would qualify as a telecommunications course rather than a correspondence course only if the institution also delivers the instruction on the cassettes or discs to students in person, i.e., to students physically attending classes at the institution, during that same award year. If a course is part residential and part correspondence, the Secretary considers the course to be a correspondence course. This straightforward interpretation eliminates the need for the Secretary to address all the troublesome issues involving the quantity of education that an institution claims to provide in a correspondence program. ``Educational program.'' Under the HEA, a community college may qualify as an eligible institution of higher education if it offers a two-year educational program that is acceptable for full credit toward a bachelor's degree at a four-year institution. Therefore, the Secretary wishes to clarify that under the definition of an educational program, which requires that such a program lead to a degree, certificate, or other educational credential, the Secretary considers that a transcript that a student receives for successfully completing the two-year program is a recognized educational credential. ``Incarcerated student.'' The Secretary proposes to define this term to mean a student who is confined in a correctional facility. However, the Secretary proposes that students who are in less formal arrangements, such as half-way houses, home detention, or sentenced to serve only weekends, would not be considered incarcerated. (Incarcerated students have limited costs of attendance under the Title IV, HEA programs, they are ineligible to receive loans under Title IV of the HEA, their enrollment may affect the eligibility of an institution if more than 25 percent of that institution's enrollment consists of incarcerated students, and certain incarcerated students are ineligible for Federal Pell Grants.) In general, if incarcerated students attend an institution of higher education, they attend under a specific arrangement between the institution and the facility in which they are incarcerated. Thus, institutions are aware of the identity and number of enrolled incarcerated students. By being so aware, institutions will be able to abide by the limitations imposed on those students when awarding Title IV, HEA program funds, and the institutions themselves will be able to avoid becoming ineligible as a result of admitting too many incarcerated students. By defining incarcerated students to exclude students in halfway houses and home detention, or serving weekend sentences, the admission of those students would not affect an institution's eligibility, and the students would not be subject to the special conditions described above. Thus, the Secretary's proposed definition would eliminate a burden on institutions of identifying these students as incarcerated students and would allow the students access to Federal Pell Grant funds and loans under Title IV of the HEA. However, if an institution is aware that a student is living in a halfway house, is under home detention or is serving a weekend sentence, and believes it is inappropriate for that student to obtain a FFEL program loan, the institution is free to refrain from certifying the FFEL program application of the student. ``One-academic-year training program.'' The Secretary proposes to revise the definition of a ``one-year training program'' to be consistent with the definition of an ``academic year'' in section 481(d) of the HEA. Under the statutory definition, an academic year must include at least ``30 weeks of instructional time.'' The Secretary will more fully define an ``academic year'' in proposed regulations to be published shortly after these regulations. ``Recognized equivalent of a high school diploma.'' Under the Secretary's current policy, this term includes (1) the academic transcript of a student who has successfully completed at least a two- year program that is acceptable for full credit toward a bachelor's degree; or (2) documentation that a student has excelled academically in high school and has met the formalized, written admission policies of the institution. This latter criterion addresses the ``academically gifted'' early admission student at a college or university. The Secretary proposes to amend the regulatory definition of a recognized equivalent of a high school diploma to include those criteria. Based on negotiated rulemaking, the Secretary is considering requiring that a student be in at least the upper quartile of his or her high school class to have ``excelled academically in high school''. Section 600.3 Special Conditions The Secretary proposes to delete this section because it is no longer needed. The requirements contained in paragraphs (a) and (b) are no longer needed because institutions offering only correspondence courses are no longer eligible institutions. The requirement that an institution be legally authorized to provide postsecondary education in the State in which it is physically located is now contained in Secs. 600.4, 600.5, and 600.6. The Secretary proposes to delete paragraph (c)(1) because that paragraph restates the requirement in section 1201(a)(2) of the HEA, i.e. an institution must be legally authorized to provide postsecondary education in its State, that is made applicable to proprietary institutions of higher education under section 481(b)(2) of the HEA, and made applicable to postsecondary vocational institutions by section 481(c)(2) of the HEA. Institutions are required to abide by those statutory requirements regardless of whether they are repeated in regulations. Thus, the Secretary wishes to reiterate that it is the Secretary's view that if the State in which an institution is physically located requires an institution to provide its programs in clock hours in order to be legally authorized to provide postsecondary education in that State, that institution satisfies section 1201(a)(2) of the HEA only if it provides its programs in clock hours. The elimination of Sec. 600.3(c)(1) does not affect that result. The Secretary proposes to delete paragraph (d)(1) in view of the regulations published in the Federal Register of July 23, 1993 (58 FR 39618-39623) that established a relationship between credit hours and clock hours for Title IV, HEA program purposes. The Secretary proposes to delete paragraphs (c)(2) and (d)(2) because ``vocational schools'' are no longer eligible institutions under the HEA. Section 600.4 Institution of Higher Education Section 496(e) of the HEA provides that the Secretary may not recognize the accreditation or preaccreditation of an institution unless the institution agrees to submit any dispute involving the final denial, withdrawal, or termination of its accreditation to arbitration before initiating any other legal action. The Secretary, in this section and Secs. 600.5 and 600.6, proposes that the referenced arbitration be binding arbitration so that any legal action after arbitration would be limited to whether the arbitrator's decision was arbitrary or capricious. The Secretary believes that this approach best carries out the purpose of section 496(e) by limiting, to the maximum extent possible, litigation in this area. This same provision is also included in Secs. 600.5 and 600.6. The Higher Education Amendments of 1992 removed the transfer-of- credit alternative to accreditation from the definition of an institution of higher education in section 1201(a) of the HEA. However, section 2(n) of the Higher Education Technical Amendments of 1993 provides that unaccredited institutions that lost their institutional eligiblity because the transfer-of-credit alternative was removed from section 1201(a) of the HEA may regain that institutional eligibility, for a limited time, provided they meet certain conditions. Because section 2(n) affects only a dozen institutions and the provision for regaining eligibility is only temporary, the Secretary proposes to remove the references to the transfer-of-credit alternative to accreditation in this section. Under section 2(n), an unaccredited institution that satisfied the transfer-of-credit alternative to accreditation on July 22, 1992 will be considered to meet the requirements of section 1201(a)(5) of the HEA (concerning accreditation or preaccreditation) if-- (1) By February 18, 1994, the institution has applied for accreditation to a nationally recognized accrediting agency or association; (2) By December 20, 1995, the institution is fully accredited by that accrediting agency or association or, if not so fully accredited, is preaccredited by that agency or association if that agency or association has been recognized by the Secretary to grant preaccreditation status; and (3) The institution otherwise satisfies the requirements of section 1201 (a)(1) through (a)(4). The Higher Education Technical Amendments of 1991 (Pub. L. 102-26, enacted on April 9, 1991) amended the requirements for admitting students who do not have a high school diploma or its recognized equivalent. As a result of Public Law 102-26, to maintain its eligibility an institution is no longer required to demonstrate that a student who does not possess a high school diploma or its recognized equivalent has met certain requirements. Any references to these previous requirements have been removed from this section and also from Secs. 600.5 and 600.6. Currently, the regulations provide that an institution is not eligible to participate in the Part B loan programs if the institution uses or employs commissioned salespersons to promote the availability of Part B loan program loans at that institution. The Higher Education Amendments of 1992 added several provisions to the institutional program participation agreement. One of these provisions is that, with the exception of recruiting foreign students residing in foreign countries who are not eligible for Title IV, HEA program assistance, an institution may not pay a commission, bonus, or other incentive payment based directly or indirectly on success in securing enrollments or financial aid to a person or entity engaged in recruiting, admission, or making decisions regarding student financial assistance. As a result of this new program participation agreement requirement (which is broader in nature than the provision in current regulations), the Secretary proposes to remove all references in this section to commissioned salespersons in the current regulations. Instead, provisions pertaining to the use of commissioned salespersons will be proposed when the Secretary publishes, shortly after these proposed regulations, a notice of proposed rulemaking for the Student Assistance General Provisions regulations that deal with the program participation agreement. Section 600.5 Proprietary Institution of Higher Education The statute requires that in order for an educational institution to qualify as a proprietary institution of higher education, it must have been in existence for at least two years. Under current regulations, the Secretary considers an institution to have been in existence for two years only if it has been legally authorized to provide, and has provided, during the 24 months (except for normal vacation periods) preceding the date of application for eligibility, a continuous training program to prepare students for gainful employment in a recognized occupation. The Secretary is proposing to make two changes to this provision. Conforming proposals are also included in Secs. 600.6 and 600.7. Under the first proposed change, during the two-year period preceding the institution's date of application, the institution will not be penalized if it failed to provide training because it temporarily closed due to a natural disaster that affected the institution or its students. This proposed change represents the Secretary's current policy. The purpose of the two-year rule is to have an institution establish that it is a viable institution that offers quality educational programs for which students will pay their own money before students can receive Title IV, HEA Program funds to enroll in those programs. The Secretary believes that this purpose is strengthened if the programs that the institution offers when it applies for institutional eligibility are substantially the same as the programs that the institution offered during the preceding two-year period. The Secretary further believes that this purpose is not served if an institution merely offers one very short program for two years and then applies for institutional eligibility offering a host of much longer and substantially different programs. Therefore, under the second proposed change, the Secretary has proposed that to satisfy the two- year rule, an institution must offer over the two-year period a training program that is substantially the same in subject matter and length of program as the training program it offers at the time of application. Section 481(b)(6) of the HEA adds a new eligibility criterion to the definition of a proprietary institution of higher education. That section requires that a proprietary institution must derive at least fifteen percent of its revenues from non-Title IV, HEA program funds. Put another way, the section prohibits a proprietary institution of higher education from deriving more than 85 percent of its revenues from Title IV, HEA program funds. Using this latter approach, the Secretary proposes the fraction contained in Sec. 600.5(d)(1) to measure this criterion, i.e., the ``85 percent rule.'' In proposing this rule, the Secretary had to interpret the term ``revenue.'' In general, at least three interpretations are possible. One interpretation would limit revenues to those funds received by the institution from tuition and fees; the second would allow an institution to include revenues received by the institution from any source for any purpose; the third would limit revenues to tuition and fees plus revenues from other activities carried out by the institution that are necessary to the education or training programs offered by the institution. These three interpretations are illustrated in the following example. A cosmetology institution owns several beauty salons. In one of the salons, students perform all the hair cutting as part of their program of training. Under the first interpretation, the only revenues that the institution could count would be the tuition and fees it charged its students. Under the second interpretation, the institution could count all revenues it received from all its beauty salons plus the tuition and fees it charged to its students. Under the third interpretation, the institution could count the tuition and fees it charged plus revenues it received from the one beauty salon at which the students performed the service. The Secretary believes that the purpose of the new statutory criterion is to require proprietary institutions to attract students based upon the quality of their programs, not solely because the institutions offer Federal student financial assistance. Thus, under the statute, these institutions must attract students who will pay for their programs with funds other than Title IV, HEA program funds. On the other hand, the Secretary recognizes that many institutions, because of their locations, provide educational opportunities to students in low-income areas who cannot attend postsecondary education without Title IV, HEA program funds. The Secretary considered these two factors, as well as the fact that the criterion relates to whether an institution qualifies as an educational institution, in selecting his proposed interpretation of the term ``revenue.'' The Secretary believes that counting only the income received from students' tuition and fees is too limiting; on the other hand, the Secretary believes it is inappropriate to count as revenues income from businesses that are owned and operated by the institution, regardless of the relationship between the educational institution and the businesses. The Secretary chose the third interpretation because the permitted revenues generated by the institution relate to the purpose of the institution, providing training to students, and are generated as a necessary part of that training. The Secretary recognizes that the third interpretation will make the rule more difficult to administer because it will be necessary for an institution to determine which of its revenue-producing activities are ``necessary'' for its students' education or training. In proposed Sec. 600.5(d)(2)(vi), the Secretary has listed criteria that would have to be satisfied to make a determination that activities are necessary for students' education or training. Examples of revenue- producing activities provided by an institution that are necessary for its students' education or training are provided below:Revenues produced by a restaurant that is owned and operated by a culinary institution where the institution's students purchase the food, cook the meals, or wait on the tables. Revenues produced by a theater that is owned and operated by an institution that provides training in acting, music, or dance where the artistic endeavors that produce the revenues are performed by the institution's students or where the theater is run by the institution's students. Revenues produced by an auto mechanic shop that is owned and operated by an institution providing auto mechanic training where the institution's students repair vehicles. To avoid inappropriate manipulation of information under the 85 percent rule, the Secretary proposes special rules regarding the calculation of the correct percentage. Thus, Title IV, HEA program funds provided to a student would be considered to be used to pay that student's institutional charges regardless of whether the institution credits the student's account with those funds or provides those funds directly to the student. Of course, Title IV, HEA program funds would be considered to satisfy a student's institutional charges only to the extent of those charges. Thus, if total institutional charges are $5,000, and the student received $6,000 of Title IV, HEA program funds, only $5,000 would be considered to be used to satisfy institutional charges. In addition, the Title IV, HEA program funds included in the numerator and the revenue described in the denominator would not include any refunds paid to or on behalf of students under the institution's refund policy since the institution does not have access to these funds. The Secretary proposes two exceptions to the first rule. The Secretary wishes to encourage proprietary institutions to obtain non- Federal, non-loan student aid funds from independent outside sources. As a result, under the first exception, the Secretary would not consider that Title IV, HEA program funds were used to satisfy institutional charges to the extent that those charges were satisfied by grant funds received from non-Federal public agencies or from private sources that are independent of the institution. For example, if total institutional charges are $5,000, and the student received $5,000 of Title IV, HEA program funds and a $1,000 scholarship from a local business, only $4,000 of the Title IV, HEA program funds would be considered to be used to satisfy institutional charges. Under the second exception, the Secretary proposes that Federal Work-Study (FWS) and State Student Incentive Grant (SSIG) program funds not be counted as Title IV, HEA program funds. The Secretary proposes to exclude FWS Program funds because (1) the Federal share of FWS Program payments to students must be paid directly to the student and cannot be applied to a student's account for institutional charges; (2) not all FWS Program earnings are necessarily applied to a student's cost of attendance, i.e., there may be job-related costs; and (3) FWS Program earnings are derived from Federal, institutional, and other sources. The Secretary proposes to exclude SSIG Program funds because a significant portion of SSIG Program awards come from State funds, and in many cases, an institution will not be able to determine the portion that comes from Federal sources. Finally, the Secretary proposes to determine whether an institution satisfies the 85 percent rule, as well as the requirements contained in Sec. 600.7(a)(1)(i), by evaluating an institution over a period of time rather than at one particular point in time. Title IV, HEA program funds, other than FFEL program funds, are generally measured over an award year (July 1 of one year through June 30 of the next year). Thus, with regard to the numerator of the fraction contained in Sec. 600.5(d)(1), the Title IV, HEA program funds that would have to be reported are those funds that were used to pay institutional charges over a complete award year. Under accounting principles, revenues received by an institution are reported on a ``financial statement'' that is prepared on a fiscal year basis. Therefore, in order to audit the revenue that an institution includes in the denominator of the fraction in Sec. 600.5(d)(1), it is necessary to have those revenues reported on a fiscal year basis. The Secretary proposes not to require an institution to change its fiscal year to coincide with an award year. As a result, if an institution's fiscal year is not on a July 1 to June 30 basis, and the institution chooses not to change its fiscal year, the reporting period for the numerator in Sec. 600.5(d)(1) would not be same as the reporting period for the denominator. Consequently, the Secretary proposes special rules to address this possibility. Each year, an institution would have to determine the revenues it received for its latest fiscal year, and would have to determine the Title IV, HEA program funds it received for institutional charges for the award year that most closely corresponds to that fiscal year. For example, if an institution's fiscal year runs from October 1, 1993 through September 30, 1994, that fiscal year overlaps two award years: October 1, 1993 through June 30, 1994 is in the 1993-94 award year, and July 1, 1994 through September 30, 1994 is in the 1994-95 award year. Since nine months of the institution's fiscal year are in the 1993-94 award year, that is the award year that would be used to determine the amount in the numerator. Moreover, the institution would have to determine the Title IV, HEA program funds that were used to pay institutional charges for that entire award year, including the period of July 1, 1993 to September 30, 1993. Similarly, if an institution's fiscal year runs from May 1, 1994 through April 30, 1995, the institution would use the Title IV, HEA program funds it received during the 1994-95 award year because 10 months of that award year, July 1, 1994 through April 30, 1995 fell in that institution's fiscal year. If the institution's fiscal year is January through December, the fiscal year would fall equally into two award years, i.e., a fiscal year of January 1, 1993 through December 31, 1993 would have six months in the 1992-93 award year (January 1, 1993 through June 30, 1993) and six months in the 1993-94 award year (July 1, 1993 through December 31, 1993). In such a case, the Secretary intends the institution to initially elect to be counted in either the earlier or later award year, and that election would be permanent for future years. The Secretary also proposes reporting requirements to accommodate the different reporting periods. In the first example where the institution's fiscal year runs from October 1, 1993 through September 30, 1994, the appropriate award year, 1993-94, would be completed before the institution's fiscal year. Under this circumstance, the Secretary proposes that the institution would have to report to the Secretary within 60 days from the end of its fiscal year, e.g., November 29, 1994, if it derived more than 85 percent of its revenues from Title IV, HEA program funds. A 60-day reporting period would be allowed in this instance to provide time for the institution to submit an audited financial statement. In the second example, where the institution's fiscal year runs from May 1, 1994 through April 30, 1995, the fiscal year would be completed before the award year was completed. Under this circumstance, the Secretary proposes that the institution would have to report to the Secretary within 31 days from the end of the relevant award year i.e., July 31, 1995, if it derived more than 85 percent of its revenues from Title IV, HEA program funds. As institutions are tracking their use of Title IV funds throughout the award year, they should be prepared to have year-end data available shortly after the end of the award year. An institution that determines that its Title IV, HEA Program revenues did not exceed 85 percent of its revenues for the relevant periods need not report that information to the Secretary. However, it must have the certified public accountant who performs its annual audited financial statement certify to the accuracy of the information used in that calculation and the calculation itself, and have the accountant submit that certification to ED with the audited financial statement. Under Sec. 600.41, Loss of eligibility, the Secretary proposes that if an institution derived more than 85 percent of its revenues from Title IV, HEA program funds, it would become ineligible on the last day of the award year used in the institution's calculation, if the award year is completed after the fiscal year used in that calculation. The institution would become ineligible on the last day of the fiscal year used in that calculation if the award year used in that calculation was completed on or before the fiscal year. Thus, in the first example, the loss of eligibility would be effective on September 30, 1994, while in the second example, the loss of eligibility would be effective on June 30, 1995. As a result, because the institution would generally be considered eligible until the end of the applicable award or fiscal year, the institution would not be liable for the Title IV, HEA program funds it disbursed or delivered during that year. However, the Secretary expects an institution to keep track of its revenues at all times. Therefore, the institution would be liable for the Title IV, HEA program funds it disbursed or delivered after the relevant award or fiscal year. The Secretary proposes that if an institution loses its eligibility as a result of failing to satisfy the 85 percent rule, to regain its eligibility it would have to demonstrate that it satisfied all the relevant eligibility requirements for a complete award year if it became ineligible on the last day of an award year, or for a complete fiscal year if it became ineligible on the last day of its fiscal year. The Secretary proposes that an institution initially self-report that it derived more than 85 percent of its revenues from Title IV, HEA program funds. If the Secretary determines that an institution made little or no effort to comply with this requirement over the reporting period, the Secretary anticipates imposing a fine on the institution. If the institution does not report that its Title IV, HEA program revenues exceeded 85 percent of its revenues for the relevant period, and the Secretary learns of this situation when the audited financial statement is submitted or through other means, the Secretary anticipates terminating the institution's eligibility and imposing a fine on the institution. The Secretary requests comments on the manner in which the fine amount should be determined, including whether the fine should equal the Title IV, HEA Program funds the institution received after the date it should have notified the Secretary that the Title IV, HEA program funds exceeded 85 percent of its revenues. Section 600.7 Conditions of Institutional Ineligibility Section 481(a)(3) of the HEA provides that an otherwise eligible institution loses that eligibility if certain conditions are met. One of those conditions relates to the type of courses that the institution offers. The other three conditions relate to the type of students the institution admits. With regard to the first condition, an otherwise eligible institution loses that eligibility if more than 50 percent of its courses are correspondence courses. With regard to the latter three conditions, an otherwise eligible institution loses its eligibility if 50 percent or more of its students are enrolled in correspondence courses, 25 percent or more of its students are incarcerated students, or, for an institution that does not offer programs for which at least an associate or bachelor's degree is offered, 50 percent or more of its students are ``ability to benefit'' students. However, if an institution satisfies the provisions of section 521(4)(C) of the Perkins Act, it does not lose its eligibility if more than 50 percent of its courses are correspondence courses or if 50 percent or more of the students are correspondence students. As indicated in the discussion regarding the 85 percent rule for proprietary institutions, the Secretary proposes to determine whether an institution becomes ineligible under these conditions by evaluating an institution over a period of time rather than at one particular point in time. The period of time the Secretary proposes for these additional conditions is a complete award year. Moreover, as with the 85 percent rule for proprietary institutions, institutions would be required to report to the Secretary if these conditions rendered them ineligible. Furthermore, each institution's compliance with these provisions would be confirmed through the institution's required compliance audit. The Secretary proposes that institutions report to the Secretary by July 31 following the end of each award year if they have failed to meet one of the conditions listed in this section. For purposes of these conditions, if as a result of an institution's calculations, any of the resulting percentages is within 10 percent of the applicable percentage, the institution would have to have performed, for the applicable award year or fiscal year, a financial and compliance audit of its Title IV, HEA programs. The certified public accountant who prepares the audit would have to certify the accuracy of the institution's calculations. The institution would have to retain the report of that audit and all relevant supporting documentation in accordance with 34 CFR 668.23(h) (governing the establishment and maintenance of an institution's records). The institution would only have to submit the report to the Secretary if the certified public accountant determined that the institution had failed to meet any of the allowable percentages. If an institution loses its eligibility under one of these conditions, to regain its eligibility it would have to demonstrate that it did not fall within one of these conditions for a subsequent complete award year. The institution would also have to demonstrate that it has appropriately revised its administrative policies and procedures to prevent the institution from meeting one of these conditions in the future. If an institution becomes ineligible as a result of one of the conditions in this section, the Secretary proposes that the date of ineligibility be the last day of the award year for which the calculation resulting in that condition is used. As a result, the institution would not generally be liable for the Title IV, HEA program funds it disbursed or delivered during the applicable award year but it would be responsible for any funds it disbursed or delivered during any subsequent award year. Furthermore, the Secretary anticipates imposing a fine on the institution if it is determined that the institution made no or little effort to comply with these provisions during the relevant award year. With regard to whether more than 50 percent of an institution's courses are correspondence courses, the Secretary proposes special rules dealing with telecommunications courses and the number of courses an institution offers. The rule dealing with telecommunications courses is derived from section 484(m)(1) of the HEA, and provides that if the sum of correspondence and telecommunications courses equals or exceeds 50 percent of the total courses offered by the institution for an award year, the telecommunications courses would be considered correspondence courses. As a result of the 1993 Technical Amendments, the Secretary may waive the requirement that an institution may not have 50 percent or more of its students enrolled in correspondence students, for an institution that offers a 2-year associate-degree or 4-year bachelor's- degree program or both, for good cause. The Secretary solicits comments from the public as to what should be considered ``good cause''. With regard to the counting of students, the Secretary proposes that institutions should count only ``regular students,'' and should count those students on the basis of a ``head count,'' rather than on the basis of full-time equivalency. Thus, if an institution enrolls 500 regular full-time students and 500 regular half-time students, the number of regular students considered enrolled would be 1,000. Moreover, the Secretary proposes that institutions count a student only once during an award year regardless of the number of times he or she enrolls or reenrolls during that period. Section 481(a)(3)(C) of the HEA authorizes the Secretary to waive the 25 percent incarcerated student provision for public or nonprofit private institutions that offer two- or four-year programs that result in an associate or bachelor's degree. The Secretary proposes to exercise this waiver authority under the following circumstances: If the institution requesting the waiver only offers two- or four-year programs leading to an associate, bachelor's or more advanced degree, the Secretary would waive the ``incarcerated student'' provision for the entire institution. However, based on negotiated rulemaking, if the institution also offers other educational programs, the Secretary would grant the waiver for the two- or four-year programs that result in associate, bachelor's, or more advanced degrees, but would grant a waiver for those other educational programs only if the incarcerated students enrolled in those other programs have at least a 50 percent completion rate. The Secretary proposes a formula for calculating that completion rate in Sec. 600.7(d)(1)(iii). Section 481(a)(3)(D) of the HEA, as amended by the Higher Education Technical Amendments of 1993, allows the Secretary to waive the limitation on the percentage of students without a high school diploma or its recognized equivalent enrolled at a nondegree institution if the institution is a nonprofit institution that demonstrates to the satisfaction of the Secretary that it exceeds the limitation because it serves, through contracts with Federal, State, or local government agencies, significant numbers of those students. The Secretary requests comments regarding the conditions under which the Secretary will grant this waiver. Issues for which comments are requested are: the purpose of the referenced contracts, what constitutes a ``significant'' number of students, and the duration of a waiver. Section 481(a)(4) of the HEA provides that an institution loses its eligibility if it files for bankruptcy, or if its owner or chief executive officer is convicted of or pleads guilty to a crime involving the acquisition, use, or expenditure of Title IV, HEA program funds, or has been judicially determined to have committed fraud involving Title IV, HEA program funds. With regard to bankruptcy, the Secretary proposes to define a filing institution for purposes of this provision to include--(1) any entity affiliated with the institution that seeks protection in a bankruptcy court against an actual or prospective action against the institution by the Secretary, a State, an accrediting agency or a guaranty agency under the FFEL programs; and (2) any entity whose resources were provided to the Secretary to enable the Secretary to certify that the institution was financially responsible and administratively capable. The Secretary proposes this expansive definition of a filing institution to prevent an institution from indirectly obtaining bankruptcy protection while avoiding the consequences under the HEA of filing for bankruptcy. Section 600.8 Treatment of a Branch Campus Under section 498(j) of the HEA, as amended by the 1993 Technical Amendments, the Secretary is charged with defining a ``branch campus.'' Moreover, under that section, a branch campus has to be certified by the Secretary before it may participate as part of the institution in a Title IV, HEA program. A branch of a proprietary institution or a postsecondary vocational institution does not have to satisfy the ``two-year rule.'' However, such a branch campus is required to be in existence for at least two years before it may seek certification as a main campus or free-standing institution. Section 600.9 Written Agreements Between an Eligible Institution and Another Institution or Organization This section has been revised to reflect the fact that as of October 1, 1992, institutions that are not accredited or preaccredited are no longer eligible institutions under the HEA. The Secretary proposes to add a provision to this section that would prevent an eligible institution from entering into an agreement with an ineligible institution if that ineligible institution had its eligibility terminated by the Secretary. The purpose of this proposal is to prevent an institution that has lost its eligibility from continuing to participate in the Title IV, HEA programs through a contractual relationship with an eligible institution. Section 600.10 Date, Extent, Duration, and Consequence of Eligibility If an institution wishes to participate in the Title IV, HEA programs, it has to satisfy the definitional requirements of an eligible institution, and also has to satisfy the standards of financial responsibility and administrative capability required for that participation. In the past, the Secretary made separate, independent determinations with regard to those two requirements. However, the Secretary is now proposing to merge the procedures under which those determinations are made. Accordingly, the Secretary proposes that if an institution applies to participate in the Title IV, HEA programs, the date on which the institution would be eligible to so participate is the date on which the Secretary signs that institution's program participation agreement required under section 487 of the HEA. The execution of that agreement represents the Secretary's determination that the institution satisfies both the institutional eligibility requirements and the standards of financial responsibility and administrative capability contained in 34 CFR, part 668, subpart B. In other words, on the date that the Secretary signs an institution's program participation agreement, the institution becomes both eligible for and a full participant in the applicable Title IV, HEA programs. With regard to an HEA program other than a Title IV, HEA program, the Secretary would continue the current practice of designating an institution as an eligible institution as of the date the Secretary receives all the information necessary to make that determination. However, designation as an eligible institution does not make the institution a participant in any non-Title IV, HEA program. Instead, that eligibility designation would continue to mean that the institution is eligible to apply to participate in non-Title IV, HEA programs. Under Sec. 600.10(b) of the current regulations, if an institution adds a location after the institution received its eligibility designation from the Secretary, that new location is not included within that designation. The Secretary proposes to amend that provision so that a location added after the institution receives its eligibility designation, or an existing location not previously included in that designation, would be considered part of that eligibility designation if the institution offers less than 50 percent of an educational program at that location. Under Sec. 600.10(c) of the current regulations, an institution may add an educational program and have that program included in the institution's eligibility without notifying the Secretary. Further, the institution may provide Title IV, HEA program funds to students enrolled in that program based upon the institution's determination that the program qualified as an eligible program under applicable statutes and regulations. In view of the expanded certification requirements contained in title IV, part H, subpart 3, of the HEA, the Secretary proposes that, except as provided below, an institution would have to notify the Secretary each time it adds an educational program and would have to have that program designated as an eligible program by the Secretary before students enrolled in that program may receive Title IV, HEA program funds. The exceptions proposed by the Secretary would allow an institution to add an educational program, without notice and approval by the Secretary, if (1) the program leads to an associate, bachelor's, or more advanced degree; or (2) the program prepares students for gainful employment in the same or related recognized occupation as a previously designated eligible program at that institution, and the program is at least 8 semester or trimester hours, 12 quarter hours, or 600 clock hours. In effect, under these proposed regulations, an institution will have to get approval from the Secretary only for two types of new vocational programs. One type includes new vocational programs that are not similar to the vocational programs already offered by the institution; the other type includes vocational programs that are similar to the vocational programs already offered by the institution but provide between 300 and 599 clock hours of instruction. These latter programs are the ones described in section 481(e)(2) of the HEA. For them to become eligible programs, the institution must demonstrate that students enrolled in those programs have a 70 percent completion rate and a 70 percent placement rate. Moreover, if the institution can make those demonstrations, students enrolled in those programs are eligible only for loans under the FFEL programs. In a future NPRM, the Secretary will propose regulations implementing the provisions governing eligible programs as defined in section 481(e) of the HEA, including provisions governing the calculation of placement and completion rates. However, there will be no change with regard to an institution's incorrect determination of program eligibility. Under this circumstance, the institution continues to be liable for all Title IV, HEA program funds received by the institution or its students for attendance in that ineligible program. The changes in Sec. 600.10 (d) and (e) will be discussed with the changes in Sec. 600.20, 600.21, and 600.30. In accordance with section 498(g) of the HEA, Sec. 600.11(d) provides that an institution's period of eligibility expires four years after the date that the Secretary determines that the institution is eligible, except that the Secretary may specify a shorter period of time. The Secretary proposes changes to Sec. 600.21, ``Eligibility notice,'' that are necessary to reflect these proposed changes. Section 600.11 Special Rules Regarding Institutional Accreditation The provisions of this section would paraphrase sections 496(h) through 496(j) of the HEA. Thus, the Secretary will not recognize an institution's change of accrediting agency unless the institution provides the Secretary with a reasonable basis for making the change. The Secretary also will not recognize accreditation or preaccreditation by more than one accrediting agency unless the institution demonstrates the need for multiple accreditation or preaccreditation, and the institution will have to choose one agency to be used to establish its eligibility under the HEA. If an accrediting agency terminates an institution's accreditation or preaccreditation for cause, or if an institution voluntarily withdraws its accreditation or preaccreditation under a show cause or suspension order, the institution will be considered ineligible for 24 months unless the accrediting agency that terminated the institution for cause or issued the show cause or suspension order rescinds its action. Finally, if an institution loses its accreditation or preaccreditation for religious reasons, the Secretary will consider that institution to be otherwise eligible for an additional 18 months, during which time the institution may obtain alternative accreditation or preaccreditation. If the institution does not obtain that alternative accreditation or preaccreditation during that 18-month period, it would lose its eligibility under the HEA because of its lack of accreditation or preaccreditation at the end of that 18-month period. The Secretary proposes the 18-month period for obtaining alternative accreditation or preaccrediation under the religious provision to be consistent with section 498(h)(2) of the HEA that has a maximum 18-month period for an institution to obtain alternative accreditation or preaccreditation when the institution's accrediting agency has its recognition withdrawn by the Secretary. Section 600.31 Change in Ownership Resulting in a Change in Control This section would be revised to reflect changes required by section 498(i) of the HEA. Section 498(i) of the HEA adopted the list in current regulations of examples of changes of control. The statute went one step further, however, in allowing the Secretary to exclude from treatment as changes of control certain changes, including a change resulting from the death of an owner of an institution, if the owner's ownership interest is sold or transferred to either a family member or a current stockholder in the corporation that owns the institution. Similarly, the Secretary could exclude from that treatment a change that the Secretary determines to be the result of a routine business practice. The Secretary proposes to add these options to these regulations without elaboration. Section 498(i) of the HEA requires an eligible institution that undergoes a change in ownership that results in a change of control to be treated, for purposes of establishing its eligibility, as if it were a new institution. A new institution, of course, is not an eligible institution until it demonstrates to the Secretary that it satisfies eligibility requirements and has the requisite administrative and financial capability to merit certification to participate in the Title IV, HEA programs. Thus, two consequences of the statutory change are that (1) an eligible institution loses its eligibility and its participation in any HEA program on the date that the institution undergoes the change of ownership that results in a change in control, and (2) the provisions of current Sec. 600.31(a) allowing the institution to be treated as the same institution, provided that the new owner satisfies the conditions contained therein, are superseded by the requirement that an institution may not participate in a Title IV, HEA program after it undergoes a change in ownership and control until it reestablishes its eligibility. Therefore, the Secretary would remove current paragraphs (a)(1) through (a)(6) of Sec. 600.31, that provide that for an eligible institution to be treated as the same institution, the new owner has to agree to be liable, or the old and new owners have to agree to be jointly and severally liable, for HEA program funds received and improperly used before the change in ownership resulting in a change of control. Also, under those provisions of current regulations, which are being deleted from these regulations, the new owner is required to honor all student enrollment contracts in effect before the date of the change; the institution is required to submit to the Secretary financial information on the new owner and on the institution for its most recent complete fiscal year together with other financial information that the Secretary might request; the institution is required to provide for the retention of records relevant to the institution's eligibility for and participation in HEA programs; and, for an institution that divided into two or more institutions, all resulting institutions are required to submit jointly to the Secretary a statement designating the successor to the original institution. Because under section 498(i) of the HEA an eligible institution that changes ownership resulting in a change of control must reestablish its eligibility, that institution would have to satisfy all the applicable requirements of this part after that change, including the applicable institutional definition or definitions and the requirement to reapply for eligibility. Section 498(i) exempts the institution, in qualifying to meet the definition of a proprietary institution of higher education or a postsecondary vocational institution, from the requirement to be in existence for at least two years, unless the institution was in existence as a branch campus for less than two years. Paragraph (a)(2) of Sec. 600.31 would reflect the exemption from the ``two-year rule.'' Because under section 498(i) the eligibility of an institution that changes ownership resulting in a change of control and the institution's certification for participation in any Title IV, HEA program lapse on the date of the change, the Secretary cannot, in entering into a new program participation agreement with the new owner for any program, continue to make the agreement effective on the date of the change, as has been past practice. Under the new law, the institution becomes eligible and able to participate in a Title IV, HEA program only when a new agreement is executed after a change of ownership. In a separate NPRM, the Secretary will propose a revision to 34 CFR 668.12 to reflect this change in the controlling statute. Current regulations authorize a substantial, if limited, degree of continued Title IV, HEA funding for students enrolled at an institution that has undergone a change of ownership resulting in a change of control. Under 34 CFR 668.25 (governing loss of participation in a Title IV, HEA program), an institution that does not close may continue to deliver or disburse Title IV, HEA program funds to students who were enrolled on the date of the end of participation and who had received commitments of Title IV, HEA program aid or, under the FFEL programs, the proceeds of an initial FFEL program disbursement prior to that date. This provision reduces the negative impact of the lapse of eligibility that occurs on the date of the change of ownership. Students enrolled after the change of ownership takes place, however, qualify for Title IV, HEA program funds only if they are still enrolled on the date on which the institution receives a new program participation agreement and regains its status as an eligible, participating institution. The Secretary recognizes that it may be desirable to clarify in the regulations the standards for identifying the ``parent'' of an institution, and for determining what constitutes a change in ``control,'' within the meaning of section 498(i). The Secretary invites comment on what those standards should be. Some institutions owned by publicly traded corporations are already subject to, and presumably conversant with, Securities and Exchange Commission (SEC) rules that rely on regulatory definitions of ``control'' and ``parent'' at 17 CFR 230.405; those definitions could prove useful to adopt generally in these and related Title IV, HEA program regulations. For those institutions that are owned by closely held corporations, the Secretary invites comment on whether the Secretary should by regulation treat the acquisition of, or relinquishment of, a 50 percent ownership interest in the corporation as the bright line for recognizing a change of ownership and control of that entity. For those institutions owned or controlled by corporations that are not closely held or institutions not owned by publicly traded corporations required to be registered with the SEC, the Secretary invites comment on whether the acquisition of, or relinquishment of, a 25 percent interest in the respective corporations together with control of the corporation should be viewed as a change of ownership and control within the meaning of this section of the regulations, in the same way it is viewed in 34 CFR 668.13(d)(3). The Secretary also invites comment on whether a change in organization from for-profit to nonprofit status should be regarded as a change of ownership that results in a change of control within the meaning of section 498(i). Section 498(h) of the statute authorizes the Secretary to provisionally certify an institution that undergoes a change in ownership for participation in a Title IV, HEA program for not more than three award years. The implementation of that provision will be discussed in another NPRM. The Secretary notes that in many, if not most, changes of ownership and control, the successor institution remains liable for financial obligations incurred under the prior ownership, whether or not the institution formally assumed or reaffirmed its liability. This continued obligation follows as a matter of course in those instances in which the change of ownership occurs in a transaction such as a sale of a controlling interest in the stock of the corporation that owns the institution. In those instances in which the change of ownership occurs through an asset sale by the corporate owner of the institution, the Secretary regards the purchaser as liable for the financial obligations associated with the institution prior to the change of ownership when there is a continuity of management, personnel, facilities, and general business operations of the institution through the sale, and the seller effectively ceases business operations as a school after the sale. However, for purposes of this discussion, it should be noted that if an institution of sound reputation undergoes a change of ownership and demonstrates a full and persuasive commitment to honor all obligations and liabilities incurred under the prior ownership (including those commitments currently provided for in paragraph (a) (1) through (6) of Sec. 600.31), the Secretary may use that provisional certification to permit that institution to resume participation after an accelerated Department review. A consequence of this provisional certification is that an institution that is certified is not entitled to the procedural advantages of section 487(c)(1)(F) of the HEA, which would otherwise apply to administrative action to terminate the participation in a Title IV, HEA program of the institution. Thus, the Secretary would provide an opportunity for an institution that has changed ownership to minimize the interruption between its loss of eligibility and participation under the old ownership and its new eligibility and participation under the new ownership in exchange for the institution's agreeing to be provisionally certified. Section 600.32 Eligibility of Additional Locations The Secretary proposes to add to this section the requirement that an ``acquiring'' institution be responsible for the payment of refunds of the institution it is acquiring. This addition is consistent with the treatment of this situation in the Student Assistance General Provisions regulations, 34 CFR part 668. Section 600.40 Loss of Eligibility The Secretary proposes to revise this section to indicate the date on which an institution loses its eligibility if it loses that eligibility under the 85 percent rule in Sec. 600.5 or under the conditions contained in Sec. 600.7(a)(1)(i). The rules for each of those circumstances were discussed previously and are clearly stated in the proposed regulations. The section makes explicit that an institution loses its eligibility as a result of its violation of the provisions of Sec. 600.5 or Sec. 600.7, regardless of its status on the date a hearing is held to terminate that eligibility. Section 600.41 Termination and Emergency Action Proceedings The Secretary proposes a simpler, faster show-cause procedure for terminating an institution's eligibility if the loss of eligibility results from: statutory changes that made a previously eligible institution ineligible; the loss of accreditation, preaccreditation, or State legal authority to provide postsecondary education; or the provisions of Sec. 600.5(a)(8) or Sec. 600.7(a). The Secretary proposes this simpler, faster show-cause proceeding because neither the facts nor the law would be in dispute in the proceeding. If an institution no longer qualifies as an eligible institution because it is in violation of a statutory or regulatory provision governing institutional eligibility, or its type of eligibility designation has been repealed, its status as an eligible institution would be terminated. Moreover, since the institution itself would report to the Secretary that it was not in compliance with the applicable eligibility requirements of Sec. 600.5 or Sec. 600.7, there would also be no question of fact in dispute. Similarly, there would be no dispute that an institution lost its State license or its accreditation since that status would be confirmed by a written statement by the State or the accrediting agency. Under the show-cause procedures, the Secretary would inform the institution that it is no longer an eligible institution and the reason for that loss of eligibility. If the institution wished to contest that determination, it would have to provide the Secretary with documentation supporting its continuing eligibility. In general, the Secretary would base a final decision on written submissions. The institution could request an oral evidentiary hearing, but the Secretary would grant that request only if the institution could demonstrate that its eligibility could not be decided by written submissions. However, given the matter at issue in this type of proceeding, the Secretary anticipates that a request for an oral evidentiary hearing would rarely be justified. The 1993 Technical Amendments amended section 487(c)(1)(F). Before the amendment, the Secretary was required to provide a hearing before terminating ``the eligibility for any (Title IV, HEA program) of any otherwise eligible institution * * *'' After the amendment, section 487(c)(1)(F) provides that the Secretary must provide a hearing before terminating the ``participation in any [Title IV, HEA program] of an eligible institution * * *'' As a result of this change, the Secretary requests comments as to whether he should remove an institution's designation of eligibility solely through a show-cause proceeding. Regulatory Flexibility Act Certification The Secretary certifies that these proposed regulations would not have a significant economic impact on a substantial number of small entities. The small entities that would be affected by these proposed regulations are institutions of postsecondary education. These regulations make a number of modifications and reduce potential abuse in the Title IV, HEA programs. These changes will result in a minimal increase in the recordkeeping burden. However, these changes would not significantly increase institutions' workloads or costs associated with administering the Title IV, HEA programs and therefore would not have a significant economic impact on a substantial number of small entities. Paperwork Reduction Act of 1980 Sections 600.4, 600.5, 600.7, 600.8, 600.10, 600.20, 600.30, and 600.31, contain information collection requirements. As required by the Paperwork Reduction Act of 1980, the Department of Education will submit a copy of these sections to the Office of Management and Budget (OMB) for its review. (44 U.S.C. 3504(h)). These proposed regulations contain records that would affect postsecondary institutions that wish to participate in the Title IV, HEA programs. An estimate of the total annual reporting and recordkeeping burden that would result from the collection of the information is 15,900 burden hours for this package. Organizations and individuals desiring to submit comments on the information collection requirements should direct them to the Office of Information and Regulatory Affairs, OMB, room 3002, New Executive Office Building, Washington, DC 20503; Attention: Daniel J. Chenok. Invitation to Comment Interested persons are invited to submit comments and recommendations regarding these proposed regulations. All comments submitted in response to these proposed regulations will be available for public inspection, during and after the comment period, in Room 4318, Regional Office Building 3, 7th and D Streets, SW., Washington, DC, between the hours of 8:30 a.m. and 4 p.m., Monday through Friday of each week except Federal holidays. Assessment of Educational Impact The Secretary particularly requests comments on whether the proposed regulations in this document would require transmission of information that is being gathered by or is available from any other agency or authority of the United States. List of Subjects in 34 CFR Part 600 Administrative practice and procedure, Colleges and universities, Consumer protection, Education, Grant programs--education, Loan programs--education, Reporting and recordkeeping requirements, Student aid. Dated: February 2, 1994. Richard W. Riley, Secretary of Education. (Catalog of Federal Domestic Assistance Number: does not apply) The Secretary proposes to amend title 34 of the Code of Federal Regulations by revising part 600 to read as follows: PART 600--INSTITUTIONAL ELIGIBILITY UNDER THE HIGHER EDUCATION ACT OF 1965, AS AMENDED Subpart A--General Sec. 600.1 Scope. 600.2 Definitions. 600.3 [Reserved]. 600.4 Institution of higher education. 600.5 Proprietary institution of higher education. 600.6 Postsecondary vocational institution. 600.7 Conditions of institutional ineligibility. 600.8 Treatment of a branch campus. 600.9 Written agreement between an eligible institution and another institution or organization. 600.10 Date, extent, duration, and consequence of eligibility. 600.11 Special rules regarding institutional accreditation or preaccreditation. Subpart B--Procedures for Establishing Eligibility 600.20 Application procedures. 600.21 Eligibility notification. Subpart C--Maintaining Eligibility 600.30 Institutional notification requirements. 600.31 Change in ownership resulting in a change of control. 600.32 Eligibility of additional locations. Subpart D--Loss of Eligibility 600.40 Loss of eligibility. 600.41 Termination and emergency action proceedings. Authority: 20 U.S.C. 1088, 1091, 1094, 1099b, 1099c, and 1141, unless otherwise noted. Subpart A--General Sec. 600.1 Scope. This part establishes the rules and procedures that the Secretary uses to determine whether an educational institution qualifies in whole or in part as an eligible institution under the Higher Education Act of 1965, as amended (HEA). An eligible institution may apply to participate in programs authorized by the HEA (HEA programs). (Authority: 20 U.S.C. 1088, 1094, 1099b, 1099c, and 1141) Sec. 600.2 Definitions. The following definitions apply to terms used in this part: Accredited: The status of public recognition that a nationally recognized accrediting agency grants to an institution or educational program that meets certain established qualifications and educational standards. Award year: The period of time from July 1 of one year through June 30 of the following year. Branch Campus: A location of an institution that is geographically apart and independent of the main campus of the institution. The Secretary considers a location of an institution to be independent of the main campus if the location-- (1) Is permanent in nature; (2) Offers courses in educational programs leading to a degree, certificate, or other recognized educational credential; (3) Has its own faculty and administrative or supervisory organization; and (4) Has its own budgetary and hiring authority. Clock hour: A period of time consisting of-- (1) A 50- to 60-minute class, lecture, or recitation in a 60-minute period; (2) A 50- to 60-minute faculty-supervised laboratory, shop training, or internship in a 60-minute period; or (3) Sixty minutes of preparation in a correspondence course. Correspondence course: (1) A ``home study'' course provided by an institution under which the institution provides instructional materials, including examinations on the materials, to students who are not physically attending classes at the institution. When students complete a portion of the instructional materials, the students take the examinations that relate to that portion of the materials, and return the examinations to the institution for grading. (2) A home study course that provides instruction in whole or in part through the use of video cassettes or video discs in an award year is a correspondence course unless the institution also delivers the instruction on the cassette or disc to students physically attending classes at the institution during the same award year. (3) A course at an institution that may otherwise satisfy the definition of a ``telecommunications course'' is a correspondence course if the sum of telecommunications and other correspondence courses offered by that institution equals or exceeds 50 percent of the total courses offered at that institution. (4) If a course is part correspondence and part residential training, the Secretary considers the course to be a correspondence course. Educational program: A legally authorized postsecondary program of organized instruction or study that leads to an academic or professional degree, vocational degree or certificate, or other recognized educational credential. However, the Secretary does not consider that an institution provides an educational program if the institution does not provide instruction itself (including a course of independent study), but merely gives credit for one or more of the following: instruction provided by other institutions or schools; examinations provided by agencies or organizations; or other accomplishments such as ``life experience.'' Eligible institution: An institution that--(a) Is one or more of the following: (1) An institution of higher education, as defined in Sec. 600.4. (2) A proprietary institution of higher education, as defined in Sec. 600.5. (3) A postsecondary vocational institution, as defined in Sec. 600.6; and (b) Meets all the other applicable provisions of this part. Federal Family Education Loan (FFEL) programs: The loan programs (formerly called the Guaranteed Student Loan (GSL) Programs) authorized by Title IV-B of the HEA, including the Federal Stafford Loan, Federal PLUS, Federal Supplemental Loans for Students (Federal SLS), and Federal Consolidation Loan programs, in which lenders use their own funds to make loans to enable students or their parents to pay the costs of the student's attendance at eligible institutions. The Federal Stafford Loan, Federal PLUS, Federal Supplemental Loans for Students (Federal SLS), and Federal Consolidation Loan programs are defined in 34 CFR part 668. Incarcerated student: A student who is serving a criminal sentence in a Federal, State, or local penitentiary, prison, jail, reformatory, work farm, or other similar correctional institution. A student is not considered incarcerated if that student is in a half-way house or home detention or is sentenced to serve only weekends. Legally authorized: The legal status granted to an institution through a charter, license, or other written document issued by the appropriate agency or official of the State in which the institution is physically located. Nationally recognized accrediting agency: An agency or association that the Secretary recognizes as a reliable authority to determine the quality of education or training offered by an institution or a program offered by an institution. The Secretary recognizes these agencies and associations under the provisions of 34 CFR part 602 and publishes a list of the recognized agencies in the Federal Register. Nonprofit institution: An institution that-- (1) Is owned and operated by one or more nonprofit corporations or associations, no part of the net earnings of which benefits any private shareholder or individual; (2) Is legally authorized to operate as a nonprofit organization by each State in which it is physically located; and (3) Is determined by the U.S. Internal Revenue Service to be an organization to which contributions are tax deductible in accordance with section 501(c)(3) of the Internal Revenue Code. One-academic-year training program: An educational program that is at least one academic year as defined under section 481(d)(2) of the HEA. Preaccredited: A status that a nationally recognized accrediting agency or association, recognized by the Secretary to grant that status, has accorded an unaccredited public or private nonprofit institution that is progressing toward accreditation within a reasonable period of time. Recognized equivalent of a high school diploma: (1) A General Education Development Certificate (GED); (2) A State certificate received by a student after the student has passed a State authorized examination that the State recognizes as the equivalent of a high school diploma; (3) An academic transcript of a student who has successfully completed at least a two-year program that is acceptable for full credit toward a bachelor's degree; or (4) For a person who is seeking enrollment in an educational program that leads to at least an associate degree or its equivalent and who has not completed high school but who excelled academically in high school, documentation that the student excelled academically in high school and has met formalized, written admission policies of the institution. Recognized occupation: An occupation that is-- (1) Listed in an ``occupational division'' of the latest edition of the Dictionary of Occupational Titles, published by the U.S. Department of Labor; or (2) Determined by the Secretary in consultation with the Secretary of Labor to be a recognized occupation. Regular student: A person who is enrolled or accepted for enrollment at an institution for the purpose of obtaining a degree, certificate, or other recognized educational credential offered by that institution. Secretary: The Secretary of the Department of Education or an official or employee of the Department of Education acting for the Secretary under a delegation of authority. State: A State of the Union, American Samoa, the Commonwealth of Puerto Rico, the District of Columbia, Guam, the Trust Territory of the Pacific Islands (Palau), the Virgin Islands, and the Commonwealth of the Northern Mariana Islands. Telecommunications course: A course offered in an award year principally through the use of television, audio, or computer transmission, including open broadcast, closed circuit, cable, microwave, or satellite, audio conferencing, computer conferencing, or video cassettes or discs. The term does not include a course that is delivered using video cassettes or disc recordings unless that course is delivered to students physically attending classes at an institution providing the course during the same award year. If the course does not qualify as a telecommunications course it is considered to be a correspondence course, as provided for in paragraph (3) of the definition of correspondence course in this section. Title IV, HEA program: Any of the student financial assistance programs listed in 34 CFR 668.1(c). (Authority: 20 U.S.C. 1071 et seq.; 1078-2, 1085, 1088, 1099b, 1099c, and 1141 and 26 U.S.C. 501(c)) Sec. 600.3 [Reserved] Sec. 600.4 Institution of higher education. (a) An institution of higher education is a public or private nonprofit educational institution that-- (1) Is in a State, or for purposes of the Federal Pell Grant, Federal Supplemental Educational Opportunity Grant, Federal Work-Study, and Federal TRIO programs may also be located in the Federated State of Micronesia or the Marshall Islands; (2) Admits as regular students only persons who-- (i) Have a high school diploma; (ii) Have the recognized equivalent of a high school diploma; or (iii) Are beyond the age of compulsory school attendance in the State in which the institution is physically located; (3) Is legally authorized to provide an educational program beyond secondary education in the State in which the institution is physically located; (4) Provides an educational program-- (i) For which it awards an associate, baccalaureate, graduate, or professional degree; (ii) That is at least a two-academic-year program acceptable for full credit toward a baccalaureate degree; or (iii) That is at least a one-academic-year training program that leads to a certificate, degree, or other recognized educational credential and prepares students for gainful employment in a recognized occupation; and (5) Is-- (i) Accredited or preaccredited; or (ii) Approved by a State agency listed in the Federal Register in accordance with 34 CFR part 603, if the institution is a public postsecondary vocational educational institution that seeks to participate only in Federal assistance programs. (b) An institution is physically located in a State if it has a campus or other instructional site in that State. (c) The Secretary does not recognize the accreditation or preaccreditation of an institution unless the institution agrees to submit any dispute involving the final denial, withdrawal, or termination of accreditation to binding arbitration before initiating any other legal action. (Authority: 20 U.S.C. 1094 and 1141(a)) Sec. 600.5 Proprietary institution of higher education. (a) A proprietary institution of higher education is an educational institution that-- (1) Is not a public or private nonprofit educational institution; (2) Is in a State; (3) Admits as regular students only persons who-- (i) Have a high school diploma; (ii) Have the recognized equivalent of a high school diploma; or (iii) Are beyond the age of compulsory school attendance in the State in which the institution is physically located; (4) Is legally authorized to provide an educational program beyond secondary education in the State in which the institution is physically located; (5) Provides an eligible program of training, as defined in 34 CFR 668.8, to prepare students for gainful employment in a recognized occupation; (6) Is accredited; (7) Has been in existence for at least two years; and (8) Has no more than 85 percent of its revenues derived from Title IV, HEA program funds, as determined under paragraph (d) of this section. (b)(1) The Secretary considers an institution to have been in existence for two years only if it has been legally authorized to provide, and has provided, during the 24 months (except for normal vacation periods and periods when the institution temporarily closes due to a natural disaster that affects the institution or the institution's students) preceding the date of application for eligibility, a continuous training program to prepare students for gainful employment in a recognized occupation that is substantially the same in length and subject matter as the educational program it is currently providing. (2) In determining whether an applicant institution satisfies the requirement contained in paragraph (b)(1) of this section, the Secretary does not count any period during which the applicant institution was a part of another eligible proprietary institution of higher education, postsecondary vocational institution, or vocational school. (c) An institution is physically located in a State if it has a campus or other instructional site in that State. (d)(1) An institution satisfies the requirement contained in paragraph (a)(8) of this section by examining its revenues under the following formula: Title IV, HEA program funds the institution used to satisfy tuition, fees, and other institutional charges to students. Revenue generated by the institution from tuition, fees, and other institutional charges, plus revenue generated by the institution from other activities conducted by the institution, to the extent not included in tuition, fees, or other institutional charges, that are necessary for its students' education or training. (2) Under the fraction contained in paragraph (d)(1) of this section-- (i) The revenue included in the denominator is from the institution's last complete fiscal year; (ii) The Title IV, HEA program funds included in the numerator are from the award year that most closely corresponds to the fiscal year reported in the denominator and do not include State Student Incentive Grant (SSIG) and Federal Work-Study program funds. (The SSIG and FWS programs are defined in 34 CFR 668.2); (iii) The Title IV, HEA program funds in the numerator and the revenue described in the denominator do not include any refunds paid to or on behalf of students under the institution's refund policy; (iv) The amount charged for books, supplies, and equipment is not included in the numerator or the denominator unless the amount is included in tuition, fees, or other institutional charges; (v) With regard to the numerator, any Title IV, HEA program funds disbursed or delivered to or on behalf of a student shall be presumed to be used to pay the student's tuition, fees, or other institutional charges, to the extent that those tuition, fees, and other charges were not satisfied by grant funds provided by non-Federal public agencies or private sources independent of the institution, regardless of whether the institution credits those funds to the student's account or pays those funds directly to the student; and (vi) With regard to the denominator, revenue generated by the institution from other activities conducted by the institution that are necessary for its students' education or training includes only revenue for those activities that-- (A) Are conducted on campus or at a facility under the control of the institution; (B) Are performed under the supervision of a member of the institution's faculty; and (C) Are required to be performed by all students in a specific educational program at the institution. (3) Notwithstanding paragraph (d)(2) of this section, for the 1992- 93 award year, the institution may not include in the numerator or denominator of the fraction contained in paragraph (d)(1) of this section, the Title IV, HEA program funds it disbursed or delivered to its students before October 1, 1992. (e) For purposes of the calculation required in paragraph (a)(8) of this section, the institution shall substantiate the required calculations by having the certified public accountant who prepares its audited financial statement required under 34 CFR 668.23 certify the accuracy of the institution's calculation, and include that certification as part of the audited financial statement. (f) An institution shall notify the Secretary if it fails to satisfy the requirement contained in paragraph (a)(8) of this section by the later of-- (1) Sixty days following the end of the fiscal year used in the fraction contained in paragraph (d) of this section, if the award year used in the fraction was completed on or before the end of that fiscal year; or (2) Thirty-one days following the end of the award year used in the fraction contained in paragraph (d) of this section, if that award year was completed after the fiscal year used in the fraction. (g) If an institution loses its eligibility because it failed to satisfy the requirement contained in paragraph (a)(8) of this section, to regain its eligibility it must demonstrate compliance with all eligibility requirements-- (1) For at least the fiscal year following the fiscal year used in the fraction contained in paragraph (d) of this section, if the award year used in that fraction was completed on or before the end of that fiscal year; or (2) For at least one award year following the award year used in the fraction contained in paragraph (d) of this section, if the award year was completed after the fiscal year used in that fraction. (h) The Secretary does not recognize the accreditation or preaccreditation of an institution unless the institution agrees to submit any dispute involving the final denial, withdrawal, or termination of accreditation to binding arbitration before initiating any other legal action. (Authority: 20 U.S.C. 1088) Sec. 600.6 Postsecondary vocational institution. (a) A postsecondary vocational institution is a public or private nonprofit educational institution that-- (1) Is in a State; (2) Admits as regular students only persons who-- (i) Have a high school diploma; (ii) Have the recognized equivalent of a high school diploma; or (iii) Are beyond the age of compulsory school attendance in the State in which the institution is physically located; (3) Is legally authorized to provide an educational program beyond secondary education in the State in which the institution is physically located; (4) Provides an eligible program of training, as defined in 34 CFR 668.8, to prepare students for gainful employment in a recognized occupation; (5) Is-- (i) Accredited or preaccredited; or (ii) Approved by a State agency listed in the Federal Register in accordance with 34 CFR part 603, if the institution is a public postsecondary vocational educational institution that seeks to participate only in Federal assistance programs; and (6) Has been in existence for at least two years. (b)(1) The Secretary considers an institution to have been in existence for two years only if it has been legally authorized to provide, and has provided, during the 24 months (except for normal vacation periods and periods when the institution temporarily closes due to a natural disaster that directly affects the institution or the institution's students) preceding the date of application for eligibility, a continuous training program to prepare students for gainful employment in a recognized occupation that is substantially the same in length and subject matter as the educational program it is currently providing. (2) In determining whether an applicant institution satisfies the requirement contained in paragraph (b)(1) of this section, the Secretary-- (i) Counts any period during which the applicant institution qualified as an eligible institution of higher education; (ii) Counts any period during which the applicant institution was part of another eligible institution of higher education, provided that the applicant institution continues to be part of an eligible institution of higher education; and (iii) Does not count any period during which the applicant institution was a part of another eligible proprietary institution of higher education or postsecondary vocational institution. (c) An institution is physically located in a State if it has a campus or instructional site in that State. (d) The Secretary does not recognize the accreditation or preaccreditation of an institution unless the institution agrees to submit any dispute involving the final denial, withdrawal, or termination of accreditation to binding arbitration before initiating any other legal action. (Authority: 20 U.S.C. 1088 and 1094(c)(3)) Sec. 600.7 Conditions of institutional ineligibility. (a) General rule. (1) For purposes of Title IV of the HEA, an educational institution that otherwise satisfies the requirements contained in Secs. 600.4, 600.5, or 600.6 nevertheless does not qualify as an eligible institution under this part if-- (i) For its latest complete award year-- (A) More than 50 percent of the institution's courses were correspondence courses as calculated under paragraph (b) of this section; (B) Fifty percent or more of the institution's enrolled regular students were enrolled in correspondence courses; (C) Twenty-five percent or more of the institution's regular enrolled students were incarcerated; (D) Fifty percent or more of its enrolled regular students had neither a high school diploma nor the recognized equivalent of a high school diploma, and the institution did not provide a four-year or two- year educational program for which it awards a bachelor's degree or associate degree, respectively; (ii) The institution, or an affiliate of an institution that has the power, by contract or ownership interest, to direct or cause the direction of the management or policies of the institution, files for bankruptcy; or (iii) The institution, its owner, or its chief executive officer-- (A) Has pled guilty to, has pled nolo contendere to, or is found guilty of, a crime involving the acquisition, use, or expenditure of Title IV, HEA program funds; or (B) Has been judicially determined to have committed fraud involving Title IV, HEA program funds. (2) For purposes of paragraph (a)(1)(ii) of this section-- (i) The institution includes any entity affiliated with the institution if that entity seeks specific judicial relief in a bankruptcy court with regard to an action taken or to be taken against the institution by the Secretary, a State agency, an accrediting agency, or a lender or guaranty agency under the FFEL programs; and (ii) The institution includes all the entities whose financial resources were presented to the Secretary, either through a combined or consolidated balance sheet or other document, to demonstrate that the institution was financially responsible and administratively capable under the standards contained in 34 CFR part 668, subpart B. (b) Special provisions regarding correspondence courses and students--(1) Treatment of telecommunications courses. For purposes of paragraphs (a)(1)(i) (A) and (B) of this section, the Secretary considers a telecommunications course to be a correspondence course if the sum of telecommunications courses and other correspondence courses the institution provided during that award year equaled or exceeded 50 percent of the total number of courses it provided during that year. (2) Calculating the number of courses. For purposes of paragraphs (a)(1)(i) (A) and (B) of this section-- (i) A correspondence course may be a complete educational program offered by correspondence, or one course provided by correspondence in an on-campus (residential) educational program; (ii) A course must be considered as being offered once during an award year regardless of the number of times it is offered during that year; and (iii) A course that is offered both on campus and by correspondence must be considered two courses for the purpose of determining the total number of courses the institution provided during an award year. (3) Exception. The provisions contained in paragraphs (a)(1)(i) (A) and (B) of this section do not apply to an institution that qualifies as a ``technical institute or vocational school used exclusively or principally for the provision of vocational education to individuals who have completed or left high school and who are available for study in preparation for entering the labor market'' under section 521(4)(C) of the Carl D. Perkins Vocational and Applied Technology Education Act. (c) Special provisions regarding incarcerated students--(1) Exception. The Secretary may waive the prohibition contained in paragraph (a)(1)(i)(C) of this section, upon the application of an institution, if the institution is a nonprofit institution that provides four-year or two-year educational programs for which it awards bachelor's or associate degrees, respectively. (2) If the nonprofit institution that applies for a waiver consists solely of four-year or two-year educational programs for which it offers bachelor's or associate degrees, respectively, or both types of programs, the Secretary waives the prohibition contained in paragraph (a)(1)(i)(C) of this section for the entire institution. (3) If the nonprofit institution that applies for a waiver does not consist solely of four-year or two-year educational programs for which it offers bachelor's or associate degrees, respectively, or both types of programs, the Secretary waives the prohibition contained in paragraph (a)(1)(iii) of this section-- (i) For the four-year and two-year programs that lead, respectively, to bachelor's and associate degrees; and (ii) For the other programs the institution offers, if the incarcerated regular students enrolled in those other programs have a completion rate of 50 percent or greater. (d) Special provisions for students who do not have a high school diploma or the recognized equivalent. The Secretary may waive the limitation contained in paragraph (a)(1)((i)(D) of this section if a nonprofit institution demonstrates to the satisfaction of the Secretary that it exceeds that limitation because it serves, through contracts with Federal, State, or local government agencies, significant numbers of students who do not have a high school diploma or its recognized equivalent. (e) Special provisions. (1) For purposes of paragraph (a)(1)(i) of this section, when counting regular students, the institution shall-- (i) Count each regular student without regard to the full-time or part-time nature of the student's attendance (i.e., ``head count'' rather than ``full-time equivalent''); (ii) Count a regular student once regardless of the number of times the student enrolls during an award year; and (iii) Determine the number of regular students who enrolled in the institution during the relevant award year by-- (A) Calculating the number of regular students who enrolled during that award year; and (B) Excluding from the number of students in paragraph (d)(1)(iii)(A) of this section, the number of regular students who enrolled but subsequently withdrew or were expelled from the institution and were entitled to receive a 100 percent refund of their tuition and fees less any administrative fee that the institution is permitted to keep under its fair and equitable refund policy; (2) For the purpose of calculating a completion rate under paragraph (c)(3)(ii) of this section, the institution shall-- (i) Determine the number of regular incarcerated students who enrolled in the other programs during the last completed award year; (ii) Exclude from the number of regular incarcerated students determined in paragraph (d)(2)(i) of this section, the number of those students who enrolled but subsequently withdrew or were expelled from the institution and were entitled to receive a 100 percent refund of their tuition and fees, less any administrative fee the institution is permitted to keep under the institution's fair and equitable refund policy; (iii) Exclude from the total obtained in paragraph (d)(2)(ii) of this section, the number of those regular incarcerated students who remained enrolled in the programs at the end of the applicable award year; and (iv) From the total obtained in paragraphs (d)(2)(iii) of this section, determine the number of regular incarcerated students who received, during the applicable award year, the degree, certificate, or other recognized educational credential awarded for successful completion of the program; (v) Divide the total obtained in paragraph (d)(2)(iv) of this section by the total obtained in paragraph (d)(2)(iii) of this section and multiply by 100. (3)(i) For purposes of paragraph (a)(1)(i) of this section, the institution shall substantiate the required calculations by having the certified public accountant who prepares its audit report required under 34 CFR 668.23 certify to the accuracy of the institution's calculations. That certification must be included with the institution's audit report. (ii) For purposes of paragraph (a)(1)(i) of this section, notwithstanding 34 CFR 668.23, as a result of the institution's calculation, if the resulting percentage is within 10 percent of the applicable percentage specified in paragraph (a)(1)(i) of this section, the institution shall have performed for the applicable award year or fiscal year, a financial and compliance audit of its Title IV, HEA programs. The certified public accountant who prepares the audit shall certify the accuracy of the institution's calculation. The institution shall retain the report of that audit and all relevant supporting documentation in accordance with 34 CFR 668.23(h) (governing the establishment and maintenance of an institution's records) but, except in accordance with paragraph (g) of this section, need not submit the report to the Secretary. (f) Notice to the Secretary. An institution shall notify the Secretary-- (1) By July 31 following the end of an award year if it falls within one of the prohibitions contained in paragraph (a)(1)(i) of this section; or (2) Within 10 days if it falls within one of the prohibitions contained in paragraphs (a)(1)(ii) or (iii) of this section. (g) Regaining eligibility. (1) If an institution loses its eligibility because of one of the prohibitions contained in paragraph (a)(1)(i) of this section, to regain its eligibility, it must demonstrate-- (i) Compliance with all eligibility requirements; (ii) That it did not fall within any of the prohibitions contained in paragraph (a)(1) of this section for at least one award year; and (iii) That it changed its administrative policies and practices to ensure that it will not fall within any of the prohibitions contained in paragraph (a)(1)(i) of this section. (2) If an institution loses its eligibility because of one of the prohibitions contained in paragraphs (a)(1)(ii) or (iii) of this section, this loss is permanent. The institution's eligibility cannot be reinstated. (Authority: 20 U.S.C. 1088 and 1091) Sec. 600.8 Treatment of a branch campus. To obtain eligibility under this part, a branch campus of an institution shall satisfy, in its own right, all the applicable institutional eligibility requirements except the ``two-year'' rule contained in Sec. 600.5(a)(7) or 600.6(a)(6). (Authority: 20 U.S.C. 1099c) Sec. 600.9 Written agreement between an eligible institution and another institution or organization. (a) Without losing its eligibility under this part, an eligible institution may enter into a written agreement with another institution or organization under which the latter provides all or a part of the educational program of students enrolled in the eligible institution if-- (1) The eligible institution gives credit to students enrolled in that program on the same basis as if it provided that program itself; and (2) The other provisions of this section are satisfied. (b) If an eligible institution enters into a written agreement with another eligible institution, there is no limit on the portion of a student's educational program that may be provided under the agreement. (c) If an eligible institution enters into an agreement with an institution or organization that is not an eligible institution-- (1) The ineligible institution or organization may provide up to 25 percent of the educational program of a student enrolled in the eligible institution; or (2) The ineligible institution or organization may provide more than 25 percent but not more than 50 percent of the educational program of a student enrolled in the eligible institution if-- (i) The eligible institution and the ineligible institution or organization are not owned or controlled by the same individual, partnership, or corporation; (ii) The eligible institution's accrediting agency, or if the institution is a public postsecondary vocational educational institution, state agency listed in the Federal Register in accordance with 34 CFR part 603, specifically determines that the institution's agreement meets the agency's standards for the contracting out of educational services; and (iii) The ineligible institution has not had its eligibility terminated by the Secretary. (Authority: 20 U.S.C. 1094) Sec. 600.10 Date, extent, duration, and consequence of eligibility. (a) Date of eligibility. (1) If the Secretary determines that an applicant institution satisfies all the statutory and regulatory eligibility requirements, the Secretary considers the institution to be an eligible institution as of the date-- (i) For purposes of participating in any Title IV, HEA program, the Secretary has signed the institution's program participation agreement described in 34 CFR part 668, subpart B; and (ii) For purposes other than participating in any Title IV, HEA program, the Secretary has received all the information necessary to make that determination. (2) If an eligible institution seeks eligibility, for purposes of a Title IV, HEA program, for a location or educational program not previously designated eligible, and the Secretary determines that the location or educational program satisfies all the statutory and regulatory eligibility requirements, the Secretary considers the location or program to be eligible to participate in that Title IV, HEA program as of the date the Secretary certifies that location or program to so participate. (b)(1) Extent of eligibility. If the Secretary determines that the entire applicant institution, including all its locations and all its educational programs, satisfies the applicable requirements of this part, the Secretary extends eligibility to all educational programs and locations identified on the institution's application for eligibility. (2) If the Secretary determines that only certain educational programs or certain locations of an applicant institution satisfy the applicable requirements of this part, the Secretary extends eligibility only to those educational programs and locations that meet those requirements and identifies the eligible educational programs and locations in the eligibility notice sent in accordance with Sec. 600.21. (3) Eligibility does not extend to any location that an institution establishes after it receives its eligibility designation if the institution provides at least 50 percent of an educational program at that location. (c) Subsequent additions of educational programs. (1) Except as provided in paragraph (c)(2) of this section, if an eligible institution adds an educational program after it has been designated as an eligible institution by the Secretary, the institution must apply to the Secretary to have that additional program designated as an eligible program of that institution. (2) An eligible institution that adds an educational program after it has been designated as an eligible institution by the Secretary does not have to apply to the Secretary to have that additional program designated as an eligible program of that institution if the additional program-- (i) Leads to an associate, baccalaureate, professional or graduate degree; or (ii)(A) Prepares students for gainful employment in the same or related recognized occupation as an educational program that has previously been designated as an eligible program by the Secretary; and (B) Is at least 8 semester hours, 12 quarter hours, or 600 clock hours. (3) If an institution incorrectly determines under paragraph (a)(2) of this section that an educational program satisfies the applicable statutory and regulatory eligibility provisions without applying to the Secretary for approval, the institution is liable to repay to ED all the student financial assistance and other ED program funds it or its students received who were enrolled in that educational program. (d) Duration of eligibility. (1) If an institution participates in a Title IV, HEA program, the Secretary's designation of the institution as an eligible institution under the HEA expires when the institution's program participation agreement, as described in 34 CFR part 668, subpart B, expires. (2) If an institution does not participate in any Title IV, HEA program, the Secretary's designation of the institution as an eligible institution under the HEA does not expire as long as the institution continues to satisfy the statutory and regulatory requirements governing its eligibility. (e) Consequence of eligibility. (1) If, as a part of its institutional eligibility application, an institution indicates that it wishes to participate in the Title IV, HEA programs and the Secretary determines that the institution satisfies the applicable statutory and regulatory requirements governing institutional eligibility, the Secretary will determine whether the institution satisfies the standards of administrative capability and financial responsibility contained in 34 CFR part 668, subpart B. (2) If, as part of its institutional eligibility application, an institution indicates that it does not wish to participate in any Title IV, HEA program and the Secretary determines that the institution satisfies the applicable statutory and regulatory requirements governing institutional eligibility, the institution is eligible to apply to participate in any HEA program listed by the Secretary in the eligibility notice it receives under Sec. 600.21. However, the institution is not eligible to participate in those programs, or receive funds under those programs, merely by virtue of its designation as an eligible institution under this part. (Authority: 20 U.S.C. 1088 and 1141) Sec. 600.11 Special rules regarding institutional accreditation or preaccreditation. (a) Change of accrediting agencies. For purposes of Secs. 600.4(a)(5)(i), 600.5(a)(6), and 600.6(a)(5)(i), the Secretary does not recognize the accreditation or preaccreditation of an otherwise eligible institution if that institution is in the process of changing its accrediting agency, unless the institution provides to the Secretary-- (1) All materials related to its prior accreditation or preaccreditation; and (2) Materials demonstrating reasonable cause for changing its accrediting agency. (b) Multiple accreditation. The Secretary does not recognize the accreditation or preaccreditation of an otherwise eligible institution if that institution is accredited or preaccredited as an institution by more than one accrediting agency, unless the institution-- (1) Provides to each such accrediting agency and the Secretary the reasons for that multiple accreditation or preaccreditation; (2) Demonstrates to the Secretary reasonable cause for that multiple accreditation or preaccreditation; and (3) Designates to the Secretary which agency's accreditation or preaccreditation the institution uses to establish its eligibility under this part. (c) Loss of accreditation or preaccreditation. (1) An institution may not be considered eligible for 24 months after it has had its accreditation or preaccreditation withdrawn, revoked, or otherwise terminated for cause, unless the accrediting agency that took that action rescinds that action. (2) An institution may not be considered eligible for 24 months after it has withdrawn from its accreditation or preaccreditation voluntarily under a show-cause or suspension order issued by an accrediting agency, unless that agency rescinds its order. (d) Religious exception. (1) If an institution loses its accreditation or preaccreditation, the Secretary permits the institution to be considered eligible for purposes of complying with the provisions of Secs. 600.4, 600.5, and 600.6 if the Secretary determines that its loss of accreditation or preaccreditation-- (i) Is related to the religious mission or affiliation of the institution; and (ii) Is not related to its failure to satisfy the accrediting agency's standards. (2) If the Secretary permits an unaccredited institution to be considered eligible under the provisions of paragraph (d)(1) of this section, the Secretary considers that unaccredited institution to be eligible for a period sufficient to allow the institution to obtain alternative accreditation or preaccreditation, except that period may not exceed 18 months. (Authority: 20 U.S.C. 1099b) Subpart B--Procedures for Establishing Eligibility Sec. 600.20 Application procedures. (a) An institution that wishes to establish its eligibility to apply to participate in any program authorized by the HEA must first apply to the Secretary for a determination that it qualifies as an eligible institution. (b) A previously designated eligible institution must apply to the Secretary for a determination that the institution continues to meet the standards in this subpart upon the request of the Secretary or if the institution wishes to-- (1) Continue to be eligible beyond the scheduled expiration of the institution's current of eligibility designation; (2) Include in the institution's eligibility-- (i) A branch campus that is not currently included in the institution's eligibility; or (ii) A location that is not currently included in the institution's eligibility, if-- (A) The institution at that location offers 100 percent of an educational program; or (B) The institution at that location offers at least 50 percent of an educational program and the Secretary requires the institution to apply for eligibility under Sec. 600.30(c)(2); (3) Continue to be eligible following a change in its name, location, or address of the institution or continue to include in the institution's eligibility-- (i) A branch campus that has changed its name, location, or address; or (ii) Another location that has changed its name, location, or address, if-- (A) That location offers 100 percent of an educational program; or (B) The Secretary requires the institution to apply for eligibility under Sec. 600.30(c)(2)(ii)(B); or (4) Reestablish eligibility following a change in ownership that results in a change in control according to the provisions of Sec. 600.31. (c) An institution applying for designation as an eligible institution shall-- (1) Apply on the form prescribed by the Secretary; and (2) Provide all the information and documentation requested by the Secretary to make a determination of its eligibility. (Authority: 20 U.S.C. 1088 and 1141) Sec. 600.21 Eligibility notification. (a) The Secretary notifies an institution in writing-- (1) Whether the applicant institution qualifies in whole or in part as an eligible institution under the appropriate provisions in Secs. 600.4, 600.5, 600.6 and 600.7; (2) Whether the institution is certified to participate in the Title IV, HEA programs if the institution applied to participate in those programs; and (3) Of the HEA programs in which it is eligible to participate, and the HEA programs for which it is eligible to apply to participate. (b) If only a portion of the applicant qualifies as an eligible institution, the Secretary specifies in the notice the locations or educational programs that qualify as the eligible institution. (c) If the Secretary receives a notice from an institution as a result of Sec. 600.30(a)(3), the Secretary-- (1) Notifies the institution that the location is an eligible location of that institution, identifies the HEA programs in which the institution may participate without further action, and that the extension of eligibility and participation is effective on the date that the Secretary received the institution's notice; or (2) Notifies the institution that the institution must apply for eligibility of that location under Sec. 600.20. (d) In making the determination under paragraph (c) of this section, the Secretary takes into account the institution's ability adequately to provide education or training at the location, including such factors as-- (1) The percentage of an educational program offered at the location; and (2) The financial and administrative capability of the institution. (Authority: 20 U.S.C. 1088, 1099c, and 1141) Subpart C--Maintaining Eligibility Sec. 600.30 Institutional notification requirements. (a) Except as provided in paragraph (b) of this section, an eligible institution shall notify the Secretary in writing, at an address specified by the Secretary in a notice published in the Federal Register, no later than 10 days after the change occurs, of any change in the following information provided in the institution's eligibility application: (1) Its name. (2) Its address. (3) The name, number, and address of locations other than the main campus at which it offers at least 50 percent of an educational program and the percentages of the educational program that it provides at each location. (4) The way the institution measures program length (e.g. a change from clock hours to credit hours). (5) Its ownership, if that ownership change results in a change in control of the institution. (6) Its status, as a proprietary, nonprofit, or public institution. (7) The exercise of a person's substantial control over the institution, if the person did not previously exercise that control. The Secretary generally considers a person to exercise substantial control over an institution if the person-- (i) Directly or indirectly holds at least a 25 percent ownership interest in the institution; (ii) Holds, together with another member or other members of his or her family, at least a 25 percent ownership interest in the institution; (iii) Represents, either alone or together with other persons, under a voting trust, power of attorney, proxy, or similar agreement one or more persons who hold either individually or in combination with the other persons represented or the person representing them, at least a 25 percent ownership in the institution; (iv) Is a member of the board of directors, the chief executive officer, or other executive officer of-- (A) The institution; or (B) An entity that holds at least a 25 percent ownership interest in the institution. (b) An eligible institution that is owned by a publicly traded corporation shall notify the Secretary in writing, at an address specified by the Secretary in a notice published in the Federal Register, of any change in the information that is described in paragraphs (a) (5) through (7) of this section at the same time that the institution notifies the institution's accrediting agency, but no later than 10 days after the corporation learns of the change. (c) The Secretary notifies the institution in writing if any reported change affects the institution's eligibility, and the effective date of that change. (d) The institution's failure to inform the Secretary of the information described in paragraph (a) of this section within the time period stated in that paragraph may result in adverse action against it, including its loss of eligibility. (e)(1) For the purposes of this section, an ownership interest is a share of the legal or beneficial ownership or control of, or a right to share in the proceeds of the operation of, an institution or institution's parent corporation. (2) The term ownership interest includes, but is not limited to-- (i) An interest as tenant in common, joint tenant, or tenant by the entireties; (ii) A partnership; and (iii) An interest in a trust. (3) The term ownership interest does not include any share of the ownership or control of, or any right to share in the proceeds of the operation of-- (i) A mutual fund that is regularly and publicly traded; (ii) An institutional investor; or (iii) A profit-sharing plan, provided that all employees are covered by the plan. (f) For the purposes of this section, the Secretary considers a member of a person's family to be a parent, sibling, spouse or child; spouse's parent or sibling; or sibling's or child's spouse. (Authority: 20 U.S.C. 1088 and 1141) Sec. 600.31 Change in ownership resulting in a change of control. (a)(1) If an eligible institution undergoes a change of ownership that results in a change in control, the institution shall reestablish its status as an eligible institution after the change. (2) To establish its status as an eligible institution under this part, an institution that undergoes a change of ownership and control must satisfy all the applicable requirements contained in Secs. 600.4, 600.5, and 600.6, except that if the institution is a proprietary institution of higher education or postsecondary vocational institution, it need not have been in existence for two years before seeking eligibility, unless it was in existence as a branch campus for less than two years. (b) For the purposes of this part, a change in ownership of an institution that results in a change of control means any action by which a person or corporation obtains new authority to control the actions of that institution. That action may include, but is not limited to-- (1) The sale of the institution or the majority of its assets; (2) The transfer of the controlling interest of stock of the institution or its parent corporation; (3) The merger of two or more eligible institutions; (4) The division of one institution into two or more institutions; (5) The transfer of the controlling interest of stock or assets of the institution to its parent corporation; or (6) The transfer of the liabilities of an institution to its parent corporation. (c) Except as provided in paragraph (d) of this section, an action that may be treated as not resulting in a change in control includes, but is not limited to-- (1) The death or retirement of an owner of an institution, when the owner's interest is sold or transferred to either a family member or a current stockholder of the corporation; or (2) Another action determined by the Secretary to be a routine business practice. (Authority: 20 U.S.C. 1099c) Sec. 600.32 Eligibility of additional locations. (a) Except as provided in paragraphs (b) and (c) of this section, to qualify as an eligible location, an additional location of an eligible institution must satisfy the applicable requirements of this section and Secs. 600.4 through 600.6. (b) To qualify as an eligible location, an additional location is not required to satisfy the two-year requirement of Secs. 600.5(a)(7) or 600.6(a)(6), unless-- (1) The location was a facility of another institution that has closed or ceased to provide educational programs for a reason other than a normal vacation period or a natural disaster that directly affects the institution or the institution's students; (2) The applicant institution acquired, either directly from the institution that closed or ceased to provide educational programs, or through an intermediary, the assets at the location; and (3) The institution from which the applicant institution acquired the assets of the location-- (i) Owes a liability for a violation of an HEA program requirement; and (ii) Is not making payments in accordance with an agreement to repay that liability. (c) Notwithstanding paragraph (b) of this section, an additional location is not required to satisfy the two-year requirement of Secs. 600.5(a)(7) or 600.6(a)(6) if the applicant institution agrees-- (1) To be liable for all improperly expended or unspent HEA program funds received by the institution that has closed or ceased to provide educational programs; (2) To be liable for all unpaid refunds owed to students who received Title IV, HEA program funds; and (3) To abide by the policy of the institution that has closed or ceased to provide educational programs regarding refunds of institutional charges to students in effect before the date of the acquisition of the assets of the additional location for the students who were enrolled before that date. (d) For purposes of this section, an ``additional location'' is a location of an institution that was not designated as an eligible location in the eligibility notification provided to an institution under Sec. 600.21. (Authority: 20 U.S.C. 1088 and 1141) Subpart D--Loss of Eligibility Sec. 600.40 Loss of eligibility. (a)(1) Except as provided in paragraphs (a) (2) and (3) of this section, an institution or a location or educational program of an institution loses its eligibility on the date that-- (i) The institution, location, or educational program fails to meet any of the eligibility requirements of this part; (ii) The institution or location permanently closes; or (iii) The institution or location ceases to provide educational programs, for a reason other than a normal vacation period or a natural disaster that directly affects the institution or a location or the students of the institution or location. (iv) The institution's period of participation, as specified under Sec. 668.13, expires, or the institution's provisional certification is revoked under Sec. 668.13; or (v) The Secretary receives a notice from the appropriate State Postsecondary Review Entity designated under Subpart 1 of Part H of Title IV of the HEA that the institution's participation should be withdrawn. (2) If an institution loses its eligibility because it violated the requirements of Sec. 600.5(a)(8), as evidenced by the determination under provisions contained in Sec. 600.5(d), it loses its eligibility-- (i) On the last day of the fiscal year used in the fraction contained in Sec. 600.5(d), if the award year used in the fraction was completed on or before the end of that fiscal year; or (ii) On the last day of the award year used in the fraction contained in Sec. 600.5(d), if that award year was completed after the fiscal year used in the fraction. (3) If an institution loses its eligibility under the provisions of Sec. 600.7(a)(1)(i), it loses its eligibility on the last day of the award year being evaluated under that provision. (b) If the Secretary undertakes to terminate the eligibility of an institution because it violated the provisions of Sec. 600.5(a)(8) or 600.7(a), the presiding official, if a hearing is requested, must terminate the institution's eligibility if it violated those provisions, notwithstanding its status at the time of the hearing. (c)(1) If the Secretary designates an institution or any of its educational programs or locations as eligible on the basis of inaccurate information or documentation, the Secretary's designation is void from the date the Secretary made the designation, and the institution or program or location, as applicable, never qualified as eligible. (2) If an institution closes its main campus or stops providing any educational programs on its main campus, it loses its eligibility as a whole, or for the programs no longer offered at its main campus, respectively, at all its locations on the date it closes that campus or stops providing any educational program at that location. (d) Except as otherwise provided in this part, if an institution ceases to satisfy any of the requirements for eligibility under this part-- (1) It must notify the Secretary within 30 days of the date that it ceases to satisfy that requirement; and (2) It becomes ineligible to continue to participate in any HEA program as of the date it ceases to satisfy any of the requirements. (Authority: 20 U.S.C. 1085, 1088, and 1141) Sec. 600.41 Termination and emergency action proceedings. (a) If the Secretary believes that a previously designated eligible institution as a whole, or at one or more of its locations, does not satisfy the statutory or regulatory requirements that define that institution as an eligible institution, the Secretary may-- (1) Terminate the institution's eligibility designation in whole or as to a particular location-- (i) Under the procedural provisions applicable to terminations contained in 34 CFR 668.81, 668.83, 668.86, 668.87, 668.88, 668.89, 668.90(a)(1), (a)(4), and (c)-(f), and 668.91; or (ii) Under a show-cause hearing, if the institution's loss of eligibility results from-- (A) Its previously qualifying as an eligible vocational school; (B) Its previously qualifying as an eligible institution, notwithstanding its unaccredited status, under the transfer-of-credit alternative to accreditation (as that alternative existed in 20 U.S.C. 1085, 1098, and 11412 and Sec. 600.8 until July 23, 1992); (C) Loss of accreditation or preaccreditation; (D) Loss of legal authority to provide postsecondary education in the State in which it is physically located; or (E) Violations of the provisions contained in Sec. 600.5(a)(8) or 600.7(a); (2) Limit, under the provisions of 34 CFR 668.86, the authority of the institution to disburse, deliver, or cause the disbursement or delivery of funds under one or more Title IV, HEA programs as otherwise provided under 34 CFR 668.25 for the benefit of students enrolled at the ineligible institution or location prior to the loss of eligibility of that institution or location; and (3) Initiate an emergency action under the provisions contained in 34 CFR 668.83 with regard to the institution's participation in one or more Title IV, HEA programs. (b) If the Secretary believes that an educational program offered by an institution that was previously designated by the Secretary as an eligible institution under the HEA does not satisfy relevant statutory or regulatory requirements that define that educational program as part of an eligible institution, the Secretary may in accordance with the procedural provisions described in paragraph (a) of this section-- (1) Undertake to terminate that educational program's eligibility under one or more of the Title IV, HEA programs under the procedural provisions applicable to terminations described in paragraph (a) of this section; (2) Limit the institution's authority to deliver, disburse, or cause the delivery or disbursement of funds provided under that Title IV, HEA program to students enrolled in that educational program, as otherwise provided in 34 CFR 668.25; and (3) Initiate an emergency action under the provisions contained in 34 CFR 668.83 with regard to the institution's participation in one or more Title IV, HEA programs with respect to students enrolled in that educational program. (c)(1) An action to terminate and limit the eligibility of an institution as a whole or as to any of its locations or educational programs is initiated in accordance with 34 CFR 668.86(b) and becomes final 20 days after the Secretary notifies the institution of the proposed action, unless the designated department official receives by that date a request for a hearing or written material that demonstrates that the termination and limitation should not take place. (2) Once a termination under this section becomes final, the termination is effective with respect to any commitment, delivery, or disbursement of funds provided under an applicable Title IV, HEA program by the institution-- (i) Made to students enrolled in the ineligible institution, location, or educational program; and (ii) Made on or after the date of the act or omission that caused the loss of eligibility as to the institution, location, or educational program. (3) Once a limitation under this section becomes final, the limitation is effective with regard to any commitment, delivery, or disbursement of funds under the applicable Title IV, HEA program by the institution-- (i) Made after the date on which the limitation became final; and (ii) Made to students enrolled in the ineligible institution, location, or educational program. (d) After a termination under this section of the eligibility of an institution as a whole or as to a location or educational program becomes final, the institution may not certify applications for, make awards of or commitments for, deliver, or disburse funds under the applicable Title IV, HEA program, except-- (1) In accordance with the requirements of 34 CFR 668.25(c) with respect to students enrolled in the ineligible institution, location, or educational program; (2) After satisfaction of any additional requirements, imposed pursuant to a limitation under paragraph (a)(2) of this section, which may include the following: (i) Completion of the actions required by 34 CFR 668.25 (a) and (b). (ii) Demonstration that the institution has made satisfactory arrangements for the completion of actions required by 34 CFR 668.25 (a) and (b). (iii) Securing the confirmation of a third party selected by the Secretary that the proposed disbursements or delivery of Title IV, HEA program funds meet the requirements of the applicable program. (iv) Using institutional funds to make disbursements permitted under this paragraph and seeking reimbursement from the Secretary for those disbursements. (Authority: 20 U.S.C. 1094) Appendix A--Summary of Attendees' Responses at Regional Meetings on Part 600--Institutional Eligibility Under the Higher Education Act of 1965, as Amended Note: This appendix will not appear in the Code of Federal Regulations. I. Sections 481(a)(3) and (4) of the HEA provide that an institution is no longer an eligible institution if-- It offers more than 50 percent of its courses by correspondence, unless the institution is an institution that meets the definition in section 521(4)(C) of the Carl D. Perkins Vocational and Applied Technology Education Act; It enrolls 50 percent or more of its students in correspondence courses (unless the institution meets the definition in section 521(4)(C) of the Carl D. Perkins Vocational and Applied Technology Education Act); More than 25 percent of its students are incarcerated (except that the Secretary may waive this prohibition for a nonprofit institution that provides a 2-year or 4-year degree); It admits more than 50 percent of its students under ability-to-benefit provisions in section 484(d) of the HEA and does not provide a 2-year or 4-year degree program; The institution has filed for bankruptcy; or The institution, its owner, or its chief executive officer committed a crime or fraud involving Title IV, HEA program funds. Issues that the community was asked to address and the community's views: 1. How should the appropriate percentages be calculated? Offers more than 50 percent of its courses by correspondence. This issue was only addressed at two of the regional meetings, where the consensus was that the calculation should be made by dividing the number of courses offered at the institution by correspondence by the total number of courses offered at the institution. Enrolls 50 percent or more of its students in correspondence courses. This issue was only addressed at one of the regional meetings where the consensus was that the calculation should be made by dividing the number of students enrolled in correspondence courses by the number of students enrolled at the institution. More than 25 percent of its students are incarcerated. This issue was not addressed at any of the regional meetings. Admits more than 50 percent of its students under ability-to-benefit provisions in section 484(d) of the HEA and does not provide a 2-year or a 4-year degree program. This issue was only addressed at one of the regional meetings, where the consensus was that the calculation should be made by dividing the number of ability-to-benefit students admitted by the total number of students admitted to the institution. What courses should be considered in calculating the correspondence percentages? This issue was only addressed at two of the regional meetings. At one of the regional meetings, the consensus was that only those courses offered solely by correspondence should be counted for these purposes. At the other regional meeting the consensus was that only courses in an eligible program under Title IV of the HEA should be counted. 2. How should the Department collect this information? This issue was only addressed at one of the regional meetings, where the consensus was that a determination of compliance with this provision should be made by the Department during a program review and should be based on information on file at the institution. 3. How often should the percentage be calculated or requested by the Secretary? There was a consensus in all four regional meetings that the percentages should be calculated annually. 4. How should ``incarcerated students'' be defined? Should the definition include residents of halfway houses or those under home restriction? There was a consensus in all four regional meetings that an ``incarcerated student'' should be defined as an individual confined to a penal institution and should not include individuals in halfway houses or in home restriction. 5. What criteria should be used to determine if an institution qualifies for a waiver of the provision governing the percentage of incarcerated students? This issue was addressed by three of the four regional meetings, where the consensus appeared to be that the Secretary should not consider waiving this provision for any institution not already covered by the statute. II. Section 481(b) provides that a proprietary institution must, pursuant to regulations, obtain at least 15 percent of its revenue from non-Title IV, HEA program sources to be an eligible institution. Issues that the community was asked to address and the community's views: 1. How should the term ``revenue'' be defined? The majority opinion in three of the four regional meetings was that all income should be considered in calculating an institution's revenue. The majority opinion in the fourth regional meeting was that the term revenue should include income derived from educational sources. 2. What process should be used to monitor compliance? The consensus in all four regional meetings was that the institution's annual financial statement should be used to monitor compliance with this requirement. 3. How often should the percentage be calculated or requested by the Department? The consensus in three of the regional meetings was that the percentage should be calculated and requested annually. The consensus in the fourth regional meeting was that while the percentage should be calculated annually, the determination of whether an institution was in compliance with this provision should be based on a two-year average. 4. How should FFEL program proceeds that have been delivered directly to a student be considered in determining this percentage? There was a consensus in all four regional meetings that FFEL program proceeds that have been delivered directly to a student should not be considered as revenue for purposes of this provision. III. Section 498(i) provides that an institution that undergoes a change in ownership that results in a change in control may not be considered the same institution and must be considered a new institution for the purpose of being certified as eligible to participate in the Title IV programs. However, the new institution is not required to have been in existence for two years prior to seeking that certification, unless the institution was in existence as a branch for less than two years. The statute lists examples of changes of ownership that result in a change in control, and allows certain changes resulting from the death of an owner or changes from routine business practices to be treated as changes in control. Issues that the community was asked to address and the community's views: 1. Should the Secretary seek by regulations to define circumstances that do or do not constitute a change in control in addition to those listed in the statute, or should the Secretary be permitted to make that decision on a case-by-case basis? This issue was only addressed at two of the regional meetings, where the consensus was that the Secretary should not define circumstances that do or do not constitute a change in control in addition to those listed in the statute. Instead, the Secretary should make the decision on a case-by-case basis. 2. What are the ``routine business practices'' that do not produce a change in control? This issue was only addressed at two of the regional meetings. The consensus at one of the regional meetings was that regulations should permit changes of ownership that result because of dissolutions of marriages and any transfers to family members not to be treated as changes in control. At the other regional meeting the consensus was that situations should be reviewed on a case-by- case basis. IV. Section 498(j) provides that a branch of an eligible institution is a separate institution and shall separately meet all the requirements of Title IV of the HEA, except that the institution may not be required (under sections 481(b)(5) or 481(c)(3) to be in existence for 2 years prior to seeking that certification unless the institution was in existence as a branch for less than 2 years. Issues that the community was asked to address and the community's views: 1. How should the term ``branch'' be defined? A precise definition was only offered at one of the regional meetings, where a branch campus was defined as a location that contains an administrative staff, student services, and instructional staff, and offers an entire educational program leading to a degree, certificate, or diploma at that site. 2. Should a branch be specifically and separately licensed by the State in which it is located as a branch campus? This issue was only addressed at two of the regional meetings, where the consensus was that a branch should be separately licensed by the State in which it is located. 3. Should a branch be specifically accredited by its accrediting agency? This issue was addressed at two of the regional meetings, where the consensus was that a branch should be specifically accredited by its accrediting agency. [FR Doc. 94-2863 Filed 2-9-94; 8:45 am] BILLING CODE 4000-01-P