§ 668.174 Past performance. ( a ) *Past performance of an institution.* An institution is not financially responsible if the institution— ( 1 ) Has been limited, suspended, terminated, or entered into a settlement agreement to resolve a limitation, suspension, or termination action initiated by the Secretary or a guaranty agency, as defined in 34 CFR part 682, within the preceding five years;
( 2 ) In either of its two most recently submitted compliance audits had a final audit determination or in a Departmentally issued report, including a final program review determination report, issued in its current fiscal year or either of its preceding two fiscal years, had a program review finding that resulted in the institution's being required to repay an amount greater than five percent of the funds that the institution received under the title IV, HEA programs during the year covered by that audit or program review;
( 3 ) Has been cited during the preceding five years for failure to submit in a timely fashion acceptable compliance and financial statement audits required under this part, or acceptable audit reports required under the individual title IV, HEA program regulations; or
( 4 ) Has failed to resolve satisfactorily any compliance problems identified in audit or program review reports based upon a final decision of the Secretary issued pursuant to subpart G or H of this part.
( b ) *Past performance of persons or entities affiliated with an institution.* ( 1 ) ( i ) Except as provided in paragraph (b)(2) of this section, an institution is not financially responsible if a person or entity who exercises substantial ownership or control over the institution, as described under 34 CFR 600.31, or any member or members of that person's family alone or together— ( A ) Exercises or exercised substantial ownership or control over another institution or a third-party servicer that owes a liability for a violation of a title IV, HEA program requirement;
( B ) Exercised substantial ownership or control over another institution that closed without a viable teach-out plan or agreement approved by the institution's accrediting agency and faithfully executed by the institution; or
( C ) Owes a liability for a violation of a title IV, HEA program requirement; and
( ii ) That person, entity, family member, institution, or servicer does not demonstrate that the liability is being repaid in accordance with an agreement with the Secretary.
( 2 ) The Secretary may determine that an institution is financially responsible, even if the institution is not otherwise financially responsible under paragraph (b)(1) of this section, if— ( i ) The institution notifies the Department, within the time permitted and as provided under 34 CFR 600.21, that the person or entity referenced in paragraph (b)(1) of this section exercises substantial control over the institution; and
( ii ) The person or entity referenced in paragraph (b)(1) of this section repaid to the Secretary a portion of the applicable liability, and the portion repaid equals or exceeds the greater of— ( A ) The total percentage of the ownership interest held in the institution or third-party servicer that owes the liability by that entity, person or any member or members of that person's family, either alone or in combination with one another;
( B ) The total percentage of the ownership interest held in the institution or servicer that owes the liability that the entity, person or any member or members of the person's family, either alone or in combination with one another, represents or represented under a voting trust, power of attorney, proxy, or similar agreement; or
( C ) Twenty-five percent, if the person or any member of the person's family is or was a member of the board of directors, chief executive officer, or other executive officer of the institution or servicer that owes the liability, or of an entity holding at least a 25 percent ownership interest in the institution that owes the liability; or
( iii ) The applicable liability described in paragraph (b)(1) of this section is currently being repaid in accordance with a written agreement with the Secretary; or
( iv ) The institution demonstrates to the satisfaction of the Secretary why— ( A ) The person or entity who exercises substantial control over the institution should nevertheless be considered to lack that control; or
( B ) The person or entity who exercises substantial control over the institution and each member of that person's family nevertheless does not or did not exercise substantial control over the institution or servicer that owes the liability.
( 3 ) An institution is not financially responsible if an owner who exercises substantial control, or the owner's spouse, has been in default on a Federal student loan, including parent PLUS loans, in the preceding five years, unless— ( i ) The defaulted Federal student loan has been fully repaid and five years have elapsed since the repayment in full;
( ii ) The defaulted Federal student loan has been approved for, and the borrower is in compliance with, a rehabilitation agreement and has been current for five consecutive years; or
( iii ) The defaulted Federal student loan has been discharged, canceled, or forgiven by the Department.
( c ) *Ownership interest.* ( 1 ) An ownership interest is defined in 34 CFR 600.31(b).
( 2 ) 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 a profit-sharing plan, provided that all employees are covered by the plan.
( 3 ) The Secretary generally considers a person or entity to exercise substantial control over an institution or third-party servicer if the person or entity— ( i ) Directly or indirectly holds at least a 25 percent ownership interest in the institution or servicer;
( ii ) Holds, together with other members of his or her family, at least a 25 percent ownership interest in the institution or servicer;
( 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 or servicer; or
( iv ) Is a member of the board of directors, a general partner, the chief executive officer, or other executive officer of— ( A ) The institution or servicer; or
( B ) An entity that holds at least a 25 percent ownership interest in the institution or servicer.
( 4 ) “Family member” is defined in § 600.21(f) of this chapter.
(Approved by the Office of Management and Budget under control number 1840-0537) [62 FR 62877, Nov. 25, 1997, as amended at 63 FR 40348, 40349, July 28, 1998; 67 FR 67075, Nov. 1, 2002; 85 FR 54818, Sept. 2, 2020; 88 FR 74707, Oct. 31, 2023]