34 C.F.R. § 668.13

Certification procedures

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(a) Requirements for certification. (1)(i) The Secretary certifies an institution to participate in the title IV, HEA programs if the institution qualifies as an eligible institution under 34 CFR part 600, meets the standards of this subpart and 34 CFR part 668, subpart L, and satisfies the requirements of paragraph (a)(2) of this section.

(ii) On application from the institution, the Secretary certifies a location of an institution that meets the requirements of § 668.13(a)(1)(i) as a branch if it satisfies the definition of “branch” in 34 CFR 600.2.

(2) Except as provided in paragraph (a)(3) of this section, if an institution wishes to participate for the first time in the title IV, HEA programs or has undergone a change in ownership that results in a change in control as described in 34 CFR 600.31, the institution must require the following individuals to complete title IV, HEA program training provided or approved by the Secretary no later than 12 months after the institution executes its program participation agreement under § 668.14:

(i) The individual the institution designates under § 668.16(b)(1) as its title IV, HEA program administrator.

(ii) The institution's chief administrator or a high level institutional official the chief administrator designates.

(3)(i) An institution may request the Secretary to waive the training requirement for any individual described in paragraph (a)(2) of this section.

(ii) When the Secretary receives a waiver request under paragraph (a)(3)(i) of this section, the Secretary may grant or deny the waiver, require another institutional official to take the training, or require alternative training.

(b) Period of participation. (1) If the Secretary certifies that an institution meets the standards of this subpart, the Secretary also specifies the period for which the institution may participate in a title IV, HEA program. An institution's period of participation expires no more than six years after the date that the Secretary certifies that the institution meets the standards of this subpart, except that—

(i) The period of participation for a private, for profit foreign institution expires three years after the date of the Secretary's certification; and

(ii) The Secretary may specify a shorter period.

(2) Provided that an institution has submitted an application for a renewal of certification that is materially complete at least 90 days prior to the expiration of its current period of participation, the institution's existing certification will be extended on a month to month basis following the expiration of the institution's period of participation until the end of the month in which the Secretary issues a decision on the application for recertification.

(A) The institution seeks initial participation in a Title IV, HEA program;

(B) The institution is an eligible institution that has undergone a change in ownership that results in a change in control according to the provisions of 34 CFR part 600;

(1) That the Secretary determines has jeopardized its ability to perform its financial responsibilities by not meeting the factors of financial responsibility under subpart L of this part or the standards of administrative capability under § 668.16;

(2) Whose participation has been limited or suspended under subpart G of this part; or

(3) That voluntarily enters into provisional certification;

(D) The institution seeks to be reinstated to participate in a title IV, HEA program after a prior period of participation in that program ended;

(E) The institution is a participating institution that was accredited or preaccredited by a nationally recognized accrediting agency on the day before the Secretary withdrew the Secretary's recognition of that agency according to the provisions contained in 34 CFR part 602;

(F) The Secretary has determined that the institution is at risk of closure; or

(G) The institution is under the provisional certification alternative of subpart L of this part.

(ii) An institution's certification becomes provisional upon notification from the Secretary if—

(A) The institution triggers one of the financial responsibility events under § 668.171(c) or (d) and, as a result, the Secretary requires the institution to post financial protection; or

(B) Any owner or interest holder of the institution with control over that institution, as defined in 34 CFR 600.31, also owns another institution with fines or liabilities owed to the Department and is not making payments in accordance with an agreement to repay that liability.

(iii) A proprietary institution's certification automatically becomes provisional at the start of a fiscal year if it did not derive at least 10 percent of its revenue for its preceding fiscal year from sources other than Federal educational assistance funds, as required under § 668.14(b)(16).

(2) If the Secretary provisionally certifies an institution, the Secretary also specifies the period for which the institution may participate in a title IV, HEA program. Except as provided in paragraph (c)(3) of this section or subpart L of this part, a provisionally certified institution's period of participation expires—

(i) Not later than the end of the first complete award year following the date on which the Secretary provisionally certified the institution for its initial certification;

(ii) Not later than the end of the third complete award year following the date on which the Secretary provisionally certified an institution for reasons—

(A) Related to substantial liabilities owed or potentially owed to the Department for discharges related to borrower defense to repayment or false certification, or arising from claims under consumer protection laws; or

(B) As a result of a change in ownership, recertification, reinstatement, automatic re-certification, or a failure under § 668.14(b)(32); and

(iii) If the Secretary provisionally certified the institution as a result of its accrediting agency losing recognition, not later than 18 months after the date that the Secretary withdrew recognition from the institution's nationally recognized accrediting agency.

(3) Notwithstanding the maximum periods of participation provided for in paragraph (c)(2) of this section, if the Secretary provisionally certifies an institution, the Secretary may specify a shorter period of participation for that institution.

(4) For the purposes of this section, “provisional certification” means that the Secretary certifies that an institution has demonstrated to the Secretary's satisfaction that the institution—

(i) Is capable of meeting the standards of this subpart within a specified period; and

(ii) Is able to meet the institution's responsibilities under its program participation agreement, including compliance with any additional conditions specified in the institution's program participation agreement that the Secretary requires the institution to meet in order for the institution to participate under provisional certification.

(d) Revocation of provisional certification. (1) If, before the expiration of a provisionally certified institution's period of participation in a Title IV, HEA program, the Secretary determines that the institution is unable to meet its responsibilities under its program participation agreement, the Secretary may revoke the institution's provisional certification for participation in that program.

(2)(i) If the Secretary revokes the provisional certification of an institution under paragraph (d)(1) of this section, the Secretary sends the institution a notice by certified mail, return receipt requested. The Secretary also may transmit the notice by other, more expeditious means, if practical.

(ii) The revocation takes effect on the date that the Secretary transmits the notice to the institution.

(iii) The notice states the basis for the revocation, the consequences of the revocation to the institution, and that the institution may request the Secretary to reconsider the revocation. The consequences of a revocation are described in § 668.26.

(3)(i) An institution may request reconsideration of a revocation under this section by submitting to the Secretary, within 20 days of the institution's receipt of the Secretary's notice, written evidence that the revocation is unwarranted. The institution must file the request with the Secretary by hand-delivery, mail, or electronic transmission.

(ii) The filing date of the request is the date on which the request is—

(A) Hand-delivered;

(B) Mailed; or

(iii) Documents filed by electronic transmission must be transmitted to the Secretary in accordance with instructions provided by the Secretary in the notice of revocation.

(4)(i) The designated department official making the decision concerning an institution's request for reconsideration of a revocation is different from, and not subject to supervision by, the official who initiated the revocation of the institution's provisional certification. The deciding official promptly considers an institution's request for reconsideration of a revocation and notifies the institution, by certified mail, return receipt requested, of the final decision. The Secretary also may transmit the notice by other, more expeditious means, if practical.

(ii) If the Secretary determines that the revocation is warranted, the Secretary's notice informs the institution that the institution may apply for reinstatement of participation only after the later of the expiration of—

(A) Eighteen months after the effective date of the revocation; or

(B) A debarment or suspension of the institution under Executive Order (E.O.) 12549 (3 CFR, 1986 comp., p. 189) or the Federal Acquisition Regulations, 48 CFR part 9, subpart 9.4.

(iii) If the Secretary determines that the revocation of the institution's provisional certification is unwarranted, the Secretary's notice informs the institution that the institution's provisional certification is reinstated, effective on the date that the Secretary's original revocation notice was mailed, for a specified period of time.

(5) The mailing date of a notice of revocation or a request for reconsideration of a revocation is the date evidenced on the original receipt of mailing from the U.S. Postal Service or another service that provides delivery confirmation for that document.

(e) Supplementary performance measures. In determining whether to certify, or condition the participation of, an institution under this section and § 668.14, the Secretary may consider the following, among other information at the program or institutional level:

(1) Withdrawal rate. The percentage of students who withdrew from the institution within 100 percent or 150 percent of the published length of the program.

(2) Educational and pre-enrollment expenditures. The amounts the institution spent on instruction and instructional activities, academic support, and support services, compared to the amounts spent on recruiting activities, advertising, and other pre-enrollment expenditures.

(3) Licensure pass rate. If a program is designed to meet educational requirements for a specific professional license or certification that is required for employment in an occupation, and the institution is required by an accrediting agency or State to report passage rates for the licensure exam for the program, such passage rates.

(Approved by the Office of Management and Budget under control number 1845-0022) [59 FR 22424, Apr. 29, 1994, as amended at 59 FR 34964, July 7, 1994; 60 FR 34431, June 30, 1995; 62 FR 62876, Nov. 25, 1997; 63 FR 40623, July 29, 1998; 64 FR 58617, Oct. 29, 1999; 65 FR 65675, Nov. 1, 2000; 74 FR 55934, Oct. 29, 2009; 75 FR 67198, Nov. 1, 2010; 85 FR 54816, Sept. 2, 2020; 87 FR 63692, Oct. 20, 2022; 88 FR 74695, Oct. 31, 2023]

Notes of Decisions

Cited in 13 cases, 1989–2018 · leading case: Mission Grp. Kansas, Inc. v. Riley, 146 F.3d 775 (10th Cir. 1998).

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Mission Grp. Kansas, Inc. v. Riley, 146 F.3d 775 (10th Cir. 1998). · cites it 10× “See 34 C.F.R. § 668.13 (c)(4)(h). Mission signed under protest, reserving the right to challenge the incorporation of the 85/15 rale into the program participation agreement and provisional certification process.”

Ass'n of Private Sector Colleges & Universities v. Duncan, 681 F.3d 427 (D.C. Cir. 2012). “71(a)(1) would be valid, because the Department may “revoke” provisional certification without following the procedures required to “terminate” an agreement with a fully certified school.”

Career Educ., Inc., D/B/A Atds-Texas v. Dep't of Educ., 6 F.3d 817 (D.C. Cir. 1993). · cites it 2× “In addition, the school must establish that it is “financially responsible,” 34 C.F.R. § 668.13 , and “administratively capable,” 34 C.”

Career Coll. Ass'n v. Duncan, 796 F. Supp. 2d 108 (D.D.C. 2011). · cites it 2× “See 34 C.F.R. § 668.13 (d); see also Career College Ass’n v.”

Career Coll. Ass'n v. Richard W. Riley, Sec'y of the United States Dep't of Educ., 74 F.3d 1265 (D.C. Cir. 1996). “He has done so by providing that an institution will have an opportunity to be heard in an administrative review process before an independent official, 34 C.F.R. § 668.13 (f). We note that the statutory structure indicates that “eligibility” is not synonymous with…”

Armstrong v. Accrediting Council for Continuing Educ. & Training, Inc., 980 F. Supp. 53 (D.D.C. 1997). “Plaintiff alleges that it is the June 1, 1987 date on which the school first failed to satisfy the financial responsibility requirements of 34 C.F.R. § 668.13 that should be determinative, and, because her enrollment post-dated that time, the contract is voidable.”

Wiesenfelder v. Riley, 959 F. Supp. 532 (D.D.C. 1997). “Further, on February 14, 1995, plaintiff requested all documents “pertaining to the criteria by which the Department recertifies postsecond-ary institutions pursuant to 34 C.F.R. § 668.13 (1994).” Id. at 2 ; see also Pl.”

Kupetz v. United States ex rel. United States Dep't of Educ. (In re California Trade Technical Schs., Inc.), 923 F.2d 641 (9th Cir. 1991). · cites it 2× “See 34 C.F.R. §§ 668.13 , 668.20, 668.83 (1982).”

Phillips Coll., Inc. v. Riley, 844 F. Supp. 808 (D.D.C. 1994). · cites it 3× “More specifically, as indicated in a later agreement, PCI agreed with the Department that “34 C.F.R. § 668.13, a regulatory provision implementing Title IV of the HEA, sets forth standards of financial responsibility that an institution must satisfy in order to begin and to…”

Mission Grp. Kansas, Inc. v. Riley, 909 F. Supp. 835 (D. Kan. 1995). · cites it 3× “34 C.F.R. § 668.13 (c)(4)(ii). Mission brought this claim for declaratory and injunctive relief against the Secretary of the Department of Education to enjoin imposition of the 85/15 Rule.”

Cont'l Training Servs., Inc. v. Cavazos, 709 F. Supp. 1443 (S.D. Ind. 1989). “, 34 C.F. R. §§ 668.13 and 668.14. ED points out that the Secretary has traditionally treated questions of adequate course length as a subquestion of this “precondition” analysis.”

Career Coll. Ass'n v. Duncan (D.D.C. 2011). · cites it 2× “71(a)(1) is limited to provisionally-certified institutions, see Dear Colleague Letter at 14–15, which are not statutorily entitled to subpart G due process protections prior to losing their provisional status but which are nonetheless provided process by a separate regulation.”

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