The Sub-Committee group meetings on Campus Safety and Peer-to-Peer file sharing created lengthy discussions during the remaining two days of negotiated rulemaking for Team V.

The Department's issue summaries are listed below, followed by the concerns raised by Sub-Committee members as well as the overall Team V negotiators.

Issue: Disclosure of Fire Safety Standards and Measures

Summary of the Issue: The HEOA requires that all Title IV eligible institutions that participate in any Title IV program and that maintain on-campus student housing facilities publish an annual fire safety report.

This report must contain information about campus fire safety practices and standards, including:

• Statistics for each on-campus housing facility, during the most recent calendar years for which data are available, concerning each of the following:
  • The number of fires and the cause of each fire;
  • The number of injuries related to each fire that result in treatment at a medical facility;
  • The number of deaths related to each fire; and
  • The value of property damage caused by each fire.
• A description of each on-campus student housing facility fire safety and sprinkler system;
• The number of regular mandatory supervised fire drills;
• The policies or rules on portable electrical appliances, smoking, open flames (such as candles);
• The procedures for evacuation;
• The policies regarding fire safety education and training programs provided to students, faculty, and staff; and
• Plans for future improvements in fire safety, if determined necessary by the institution.

Institutions participating in any Title IV programs must submit a copy of the statistics required in the first bullet to the Secretary on an annual basis. Furthermore, institutions must create and maintain a log of all fires in on-campus student housing facilities, including the nature, date, time, and general location of each fire, and prepare and submit annual reports to the campus community on such fires.

Concerns Raised by Negotiators

• Significant discussion given to defining what is 'fire'. It was stated that a fire is "any instance of destructive burning and/or uncontrolled open flame that results in the combustion of solids, liquids, or gas." Opinions were voiced as to what is a minor fire versus a major fire. If it is a minor fire that does not cause damage to institutional or public property, should this be reported as a fire incident? Many members felt that a fire is a fire and all fires should be reported. Others felt that reporting all fires no matter how minor could mask the degree of major fire risk on a campus.
• Considerable discussion expressed on what is a controlled fire versus an uncontrolled fire. After much discussion, it was generally agreed that a candle or fireplace burning is a controlled fire and doesn't count as "fire". Members proposed that schools give an explanation on how the fire was handled and not give just the bare statistic. A sub committee member mentioned that there is currently no mechanism to capture that extra type of information, but if a school wanted to publish something extra that would be fine. This raised the question of what does it mean to 'make annual reports to the campus community on such fires'. The statute is unclear. However, members felt that the language in the law does not imply that there should be two separate reports on fires.
• Discussion on what is arson versus a destructive burning. It was stated that arson reflects criminal intent and a destructive fire is accidental, e.g., a smoldering burning item, such as a sofa, which has the potential to break into an open fire.
• Discussion on whether there is any latitude to put a dollar amount on the value of damage caused by a fire. In other words, how should fires which result in no cost to an individual or the institution be treated, as indicative of a potential fire hazard or as inconsequential.
• Discussion on which authority does the fire become known to. For example a custodian comes across a burned poster and simply cleans it up. Who should he/she report this to for it to become designated as a fire? This is not specified in statute. ED negotiators said this is unlikely be regulated by the Department.

Issue: Missing Person Procedures

Summary of the Issue: The HEOA requires Title IV eligible institutions that provide on-campus housing to establish a missing student notification policy for students who reside in on-campus housing. This policy must:

• Inform each student of the option to identify a contact person whom the institution may notify in the case that the student is determined missing, according to the institution's official notification procedures described below;
• Provide each student a means to register this confidential contact information;
• Advise each student who is under 18 years of age, and is not an emancipated individual, that if the student is determined missing, then the institution must notify a custodial parent or guardian within 24 hours; and
• Require the institution to initiate the emergency contact procedures in accordance with the student's designation if the campus security or law enforcement entity has been notified and has determined that such student has been missing for more than 24 hours and has not returned to campus.

Section 485(j) of the HEA also requires that institutions establish notification procedures for a missing student who resides in on-campus housing that:

• Includes procedures for official notification that a student has been missing for more than 24 hours to the appropriate individuals at the institution;
• Requires any official missing person report regarding such student to be referred immediately to the institution's police or campus security department; and
• Requires, if the campus security department determines that such student has in fact been missing for more than 24 hours, that the department notify the appropriate individuals:
  • If the missing student has identified a contact in accordance with the first bullet above, then such individual should be notified.
  • If the missing student is under 18 and not emancipated, then the department must immediately notify such student's custodial parent or legal guardian.
  • If neither of the preceding two scenarios applies to a student determined to be a missing person, then the department will inform the appropriate law enforcement agency.

Concerns Raised by Negotiators

• Discussion on who determines if a person is missing. Schools must have a policy in place.
• Concerns raised about what happens if a student designates someone other than a parent as the emergency contact person and what happens when the school calls the wrong emergency contact person. ED mentioned that schools could be sued if the wrong emergency contact person is called.
• Need clarification on the multiple 24 hour notification timelines listed in the statute. Current language is confusing.
• Discussion on how this might work if the school already collects emergency contact information.

Issue: Hate Crime Reporting

Summary of the Issue: The HEOA expands the list of crimes that institutions must include in hate crime statistics reported to the Department of Education.

Under the HEA, institutions are required to report statistics on criminal offenses occurring on campus, in or on noncampus buildings or property, and on public property during the most recent calendar year, and during the 2 preceding calendar years for which data are available. Section 485(f)(1)(F)(i) currently lists the crimes that must be reported, including:

• Murder;
• Sex offenses, forcible or nonforcible;
• Robbery;
• Aggravated assault;
• Burglary;
• Motor vehicle theft;
• Manslaughter;
• Arson; and
• Arrests or persons referred for campus disciplinary action for liquor law violations, drug-related violations, and weapons possession.

Additionally, §485(f)(1)(F)(ii) requires institutions to report hate crimes, or crimes that are perpetrated against a victim intentionally because of the actual or perceived race, gender, religion, sexual orientation, ethnicity, or disability of the victim. HEOA section 488(e) requires institutions to report hate crime statistics that include, in addition to the types of crimes listed above, larceny-theft, simple assault, intimidation, and destruction, damage, or vandalism of property, as well as other crimes involving bodily injury to any person.

Concerns Raised by Negotiators

• Discussed updating website so category of prejudice can be reported.
• Desire to use FBI Uniform Crime Reporting (UCR) definitions for new crimes.
• Discussed timing issues for enforcement of new provision.

Issue: Reporting Emergency Response and Evacuation Procedures

Summary of the Issue: The HEOA expands the list of information that institutions are required to include in the annual security report. Under section 485(f)(J) of the HEA, institutions must include a statement of emergency response and evacuation procedures, describing how the institution will immediately notify the campus community upon the confirmation of a significant emergency or dangerous situation involving an immediate threat to the health or safety of students or staff occurring on the campus, unless the notification will compromise efforts to contain the emergency. "Campus" is defined in 34 C.F.R. §668.46 as:

• Any building or property owned or controlled by an institution within the same reasonably contiguous area and used by the institution in direct support of, or in a manner related to, the institution's educational purposes, including residence halls; and
• Any building or property that is within or reasonably contiguous to the area identified above that is owned by the institution but controlled by another person, is frequently used by students, and supports institutional purposes (such as a food or other retail vendor).

Institutions are required to both publicize the emergency response and evacuation procedures to students and staff, and test the emergency response and evacuation procedures on an annual basis.

Concerns Raised by Negotiators

• Discussed and defined certain terminology:
  • The meaning of 'immediate'. The team determined 'immediate' means what it is.
  • The meaning of 'staff'. The team determined 'staff' applies to all school employees.
  • The meaning of 'evacuation'. The team determined that 'evacuation' refers to leaving a building, but not necessarily the whole campus.
  • ED raised the concept of 'confirmation.' There was no conclusion reached on this term. It needs further clarification.
• Desire for flexibility in being able to notify only certain segments of the community (e.g., certain buildings).
• Discussed how these requirements will work with the existing timely warning requirement.

Issue: Peer-to-Peer file sharing/copyrighted materials

Summary of the Issue: Effective August 14, 2008, the HEOA adds a new requirement to section 487 of the HEA (Program Participation Agreement) under which an institution must certify that it has developed plans to effectively combat the unauthorized distribution of copyrighted material (including through the use of a variety of technology-based deterrents) and will, to the extent practicable, offer alternatives to illegal downloading or peer-to-peer distribution of intellectual property, as determined by the institution in consultation with the chief technology officer or other designated officer of the institution.

In addition, as part of the required information an institution must make available to prospective and enrolled students the HEOA adds new subparagraph (P) to section 485(a)(1) of the HEA to require a description of institutional policies and sanctions related to copyright infringement. This description includes (1) an annual disclosure that explicitly informs students that unauthorized distribution of copyrighted material, including peer-to-peer file sharing, may subject the students to civil and criminal liabilities; (2) a summary of the penalties for violation of Federal copyright laws; and (3) the institution's policies with respect to unauthorized peer-to-peer file sharing, including disciplinary actions that are taken against students who engage in unauthorized distribution of copyrighted materials using the institution's information technology system. This provision is also effective August 14, 2008.

Concerns Raised by Negotiators

• The Sub-Committee reported the need to have regulations in place for:
  1. an annual disclosure that explicitly informs students that unauthorized distribution of copyrighted material, including peer-to-peer file sharing, may subject the students to civil and criminal liabilities; and
  2. a penalty for violation of Federal copyright laws.
• The Sub-Committee reported the desire to make sure universities have rules in place on this issue and that the policy is communicated and enforced to students.
• The Sub-Committee expressed its desire that the required efforts to "effectively combat the unauthorized distribution of copyrighted material" must be proportional to the size of the problem.
• The Sub-committee discussed the possibility of schools conducting a periodic internal review of its policy.

Issue: Financial Assistance for individuals with intellectual disabilities

Summary of the Issue: The HEOA adds a provision to the HEA to expand eligibility for funding under the Federal Pell Grant, FSEOG, and FWS programs to students with intellectual disabilities.

As defined in §760 of the HEA, a student with an intellectual disability is a student with mental retardation or a cognitive impairment, characterized by significant limitations in intellectual and cognitive functioning and adaptive behavior, as expressed in conceptual, social and practical adaptive skills. Further, such a student is currently, or was formerly, eligible for a free appropriate public education under the Intellectual with Disabilities Education Act.

Under section 484(s) of the HEA, a student with an intellectual disability may receive Federal financial assistance to attend a comprehensive transition and postsecondary program for students with intellectual disabilities (defined in section 760 of the HEA). Such a program is a degree, certificate, or non-degree program that:

• Is offered by an institution of higher education;
• Is designed to support students with intellectual disabilities who seek to continue academic, career and technical, and independent living instruction to prepare for gainful employment;
• Includes an advising and curriculum structure;
• Requires attendees to participate on at least a half-time basis, as determined by the institution; and
• Focuses on academic components, which may occur through one or more of the following activities:
  • Regular enrollment in credit-bearing courses with nondisabled students offered by the institution;
  • Auditing or participation in courses with nondisabled students offered by the institution for which the student does not receive regular academic credit;
  • Enrollment in noncredit-bearing, nondegree courses with nondisabled students; or
  • Participation in internships or work-based trainings in settings with nondisabled students.

The HEA now specifies that the eligibility requirements for financial assistance under the Pell, FSEOG, and FWS programs for a student with an intellectual disability differ from the eligibility requirements for a student who does not have an intellectual disability. In particular, the provision that a student achieve satisfactory progress under §484(a) and 484(c) of the HEA, and the provision that a student demonstrate the ability to benefit, under §484(d)(1), (2), (3), and (4) are not applicable in new §485(s). To be eligible for financial assistance, a student with an intellectual disability must:

• Be enrolled or accepted for enrollment in a comprehensive transition and postsecondary program for students with intellectual disabilities at an institution of higher education;
• Be maintaining satisfactory progress, as determined by the institution; and
• Meet the student eligibility requirements in §§484(a)(3), (4), (5), and (6). Under these provisions, a student must not be in default on any Federal student loans, must have filed a FAFSA form, must be a United States citizen or national, and, if the student was convicted of fraud in obtaining funds under this title, must have completed the repayment of such funds.

With the exception of provisions surrounding Need Analysis, the Secretary may waive any statutory provisions governing the Pell Grant, FSEOG, and FWS programs, and any institutional eligibility provisions to ensure that eligible students and such comprehensive transition and postsecondary programs for students with intellectual disabilities remain eligible for Title IV program funds.

Concerns Raised by Negotiators

• Extensive discussion given to defining full-time enrollment. There has never been a reduction in the definition of full-time enrollment before, but it is an ongoing concern. Is ED willing to make full-time enrollment less than the current minimum of 12 hours for undergraduate students? Is it possible that schools can create school an enrollment policy for these students? ED is unsure of what they will waive in this area.

Team V will meet for Session Two of negreg on April 14 through April 16, 2009.

Posted 03/13/09 to www.NASFAA.org. Redistribution to non-NASFAA institutions is prohibited. Please submit Web site questions or comments to Web@NASFAA.org.