Final Program Integrity Rules: Expanded Definition of 'Required to Take Attendance' for Return of Funds Calculations

Final program integrity regulations were published on October 29, 2010, based on a Notice of Proposed Rulemaking (NPRM) published on June 18, 2010. This article is part of a series on final program integrity regulations. The series details the regulatory changes and additional information contained in the preamble to the final rules in response to comments submitted to the U.S. Department of Education. Most provisions are effective July 1, 2011 (verification being the notable exception, with an effective date of July 1, 2012). Unlike previous final rule packages in recent years, early implementation at an institution’s option has not been approved for any provision. 

When a student withdraws from school during a term or other payment period before completing it, the Higher Education Act requires the institution to determine whether Title IV funds must be returned by or on behalf of the student. The amount of Title IV funds that were earned by the student is directly proportional to the length of time he or she remained enrolled within the payment period, as indicated by the student's withdrawal date.

The law directs the institution to determine the student's withdrawal date according to one of two sets of rules: one for institutions that are required to take attendance, and another for institutions that are not required to take attendance. The law does not define the phrase "required to take attendance."

Regulations specify that for institutions required to take attendance, the withdrawal date is determined from the institution's attendance records, whether the student withdrew officially or unofficially; no other alternatives are available.

Institutions not required to take attendance use the date the student officially withdrew (i.e., the day he or she began the schools' defined withdrawal process, or otherwise notified the school of his or her intent to withdraw). If the student leaves without notifying the school, the law provides that the withdrawal date is the midpoint of the payment period. Under current regulations, the school may use a later or earlier date if that determination is documented by attendance in a class or other academically-related activity. Academic activities for institutions that are not required to take attendance include, but are not limited to, class attendance. Examples of other types of academically-related activities currently include: taking tests; turning in papers or other assignments; computer-assisted instruction; academic advising, counseling, or conferences; tutorials; and participation in school-assigned study groups. Only schools that are not required to take attendance may use activities other than class attendance to document a last date of attendance.

Beginning July 1, 2011, new rules change the definition of "required to take attendance" in a way that will subject more institutions to the rules applicable to taking attendance. The final rules also revise the definition of "academically-related activity," excluding some of the currently acceptable examples.

New Rule: Taking Attendance

Under the final rule, institutions that are not required by their state or accrediting agency to take attendance, but elect to do so on their own, become subject to the same rules applicable to schools that are required by an outside agency to take attendance. Schools that take attendance for only a short segment of the payment period will have to follow rules applicable to schools that are required to take attendance for that segment of the payment period. (If, however, the institution takes attendance only on one specified day to meet a census reporting requirement, the institution is not considered to take attendance.)

The new final regulations consider an institution to be required to take attendance if --

  • An outside entity (such as the institution's accrediting agency or a State agency) has a requirement that the institution take attendance;
  • The institution itself has a requirement that its instructors take attendance; or
  • The institution or an outside entity has a requirement that can only be met by taking attendance or a comparable process, including, but not limited to, requiring that students in a program demonstrate attendance in the classes of that program, or a portion of that program.

If an institution is required to take attendance, or requires that attendance be taken, for a limited period, the institution will have to use its attendance records to determine a withdrawal date for that limited period. A student in attendance the last time attendance is required to be taken during the limited period who subsequently stops attending during the payment period will be treated as a student for whom the institution was not required to take attendance. (The regulation does not require schools to continue to take attendance beyond the limited period if the school does not otherwise do so.) This interpretation of the law rule is not in current regulation, but is given as guidance in the FSA Handbook, unless the taking of attendance is voluntary as opposed to required by some outside agency.

Under the new rules, if an institution takes attendance (either voluntarily or because it is required to) for only some students, the institution must use its attendance records to determine a withdrawal date for those students. The current rule contains this condition but only as a requirement of an outside entity imposed on the institution.

In the preamble to the final rule, ED reinforces the voluntary taking of attendance as a condition that subjects the institution to the new rule: if "the institution requires its faculty to take attendance, whether at the program, department, or institutional level, then those attendance records must be used by the institution in determining a student's date of withdrawal." That is, the institution must use its attendance records to determine a withdrawal date for students in those programs or departments where attendance is required to be taken. However, if a faculty member chooses to take attendance when the institution does not otherwise require it, the institution would not be considered an institution required to take attendance, although it has the option of using those records.

The institution is not necessarily subject to the taking attendance rules when a student is required to self-certify attendance directly to an outside entity. For example, a veterans' benefits requirement that recipients self-report attendance would not result in an institutional requirement to take attendance of those students unless the institution is required to verify the student's self-certification.

ED explains that it "is looking at the substance of the information that is available rather than the way that information is described or portrayed by the institution or outside entity. If the institution is required to collect information or record information about whether a student was in attendance during a payment period, or during a limited period of time during a payment period, that information should be used to determine if the student ceased attendance during that period." For example, ED considers a requirement to measure the clock hours a student completes in a program to be a requirement for those institutions to take attendance for those programs. (ED notes that "institutions that use clock hours for a program for State reporting or licensing purposes will be treated as institutions that are required to take attendance under this regulation, and the clock hours attended will be used to determine when a student ceased attendance.")

ED also points out that institution must document a student's withdrawal date and maintain that documentation. This may have implications for how an institution currently maintains attendance records.

The new regulations require an institution to follow rules for institutions required to take attendance even if it applies to a short period (longer than a single day) during which instructors take attendance prior to a census or final add-drop date. Responding to objections to this policy, ED states: "Standing alone, information that a student was absent on the last date attendance was taken during a limited period of time is the best evidence that the student has ceased attendance." If the student the student earns a grade for the class, that presumption is refuted. If the student did not complete the class, ED states that the institution may determine whether there is evidence that the student was academically engaged in the class at a point after the limited period when attendance was taken. "Unless an institution demonstrates that a withdrawn student who is not in attendance at the end of the limited period of required attendance taking attended after the limited period, the student's withdrawal date would be determined according to the requirements for an institution that is required to take attendance. That is, the student's withdrawal date would be the last date of academic attendance, as determined by the institution from its attendance records. If the institution demonstrates that the student attended past the end of the limited period, the student's withdrawal date is determined in accordance with the requirements for an institution that is not required to take attendance ," i.e., the midpoint of the payment period or a later documented date of academic activity.

New Rule: Documenting Attendance

The final rules define "academic attendance" and "attendance at an academically-related activity." These terms include, but are not limited to:

  • Physically attending a class where there is an opportunity for direct interaction between the instructor and students;
  • Submitting an academic assignment;
  • Taking an exam, an interactive tutorial, or computer-assisted instruction;
  • Attending a study group that is assigned by the institution;
  • Participating in an online discussion about academic matters; and
  • Initiating contact with a faculty member to ask a question about the academic subject studied in the course.

"Academic attendance" and "attendance at an academically-related activity" do not include activities where a student may be present, but not academically engaged, such as:

  • Living in institutional housing;
  • Participating in the institution's meal plan;
  • Logging into an online class without active participation; or
  • Participating in academic counseling or advisement.

Under the new rule, ED no longer considers participation in academic counseling or advising to be an activity that demonstrates academic attendance or attendance at an academically-related activity.

A student's certification of attendance that is not supported by institutional documentation is not acceptable to establish a last date of attendance.

The examples given in the final rule may be used as long as there is no conflict with the requirements of the outside entity that requires the institution to take attendance or, if applicable, the institution's own requirements.

ED notes that for distance education formats, "a student logging in with no participation thereafter may indicate that the student is not even present at the computer past that point. Further, there is also a potential that someone other than the student may have logged into a class using the student's information to create the appearance the student was on-line. Instead, an institution must demonstrate that a student participated in class or was otherwise engaged in an academically-related activity, such as by contributing to an online discussion or initiating contact with a faculty member to ask a course-related question."


Publication Date: 11/12/2010

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