# FY 2014 Violence Against Women Act

# Small Entity Compliance Guide

### Introduction

The U.S. Department of Education has prepared this document as the “small entity compliance guide” required by section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996. The guide summarizes and explains rules adopted by the Department, but is not a substitute for any rule itself. Only the rule itself can provide complete and definitive information regarding its requirements.

### Purpose of this Guidance

On October 20, 2014, the Department issued final regulations which amended the Student Assistance General Provisions regulations issued under the Higher Education Act of 1965, as amended (HEA), to implement the changes made to the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act (the Clery Act) by the Violence Against Women Reauthorization Act of 2013 (VAWA). These regulations update, clarify, and improve the current regulations. 

This guidance restates some of the information in the final regulations, particularly the information directly related to small entities. However, this guidance does not replace the final regulations; instead it is a reference for small entities seeking information about the impact of the regulations on them.

The Clery Act requires institutions of higher education to comply with certain campus safety- and security-related requirements as a condition of their participation in the Federal student financial aid programs authorized by Title IV of the HEA. VAWA amended the Clery Act to require institutions to compile statistics for incidents of dating violence, domestic violence, sexual assault, and stalking and to include certain policies, procedures, and programs pertaining to these incidents in their annual security report.

The Department sought to develop regulations that are effective and manageable for all types of institutions. As part of that effort, the Department’s negotiated rulemaking committee consisted of representatives of a wide variety of participants in the Federal student financial aid programs, including representatives from small institutions.

### Summary of the Major Provisions

As reflected in the final regulations, the rules – 

· Require institutions to maintain and disclose statistics about the number of incidents of dating violence, domestic violence, sexual assault, and stalking that occur on or near their campus (668.46(b)(11)(iii)(A)); 

· Clarify the very limited circumstances in which an institution may remove reports of crimes that have been ‘‘unfounded’’ and require institutions to report to the Department and disclose in the annual security report the number of ‘‘unfounded’’ crime reports (668.46(c)(4)(iii)); 

· Revise the definition of ‘‘rape’’ to reflect the Federal Bureau of Investigation’s (FBI) updated definition in the Uniform Crime Reporting (UCR) Summary Reporting System, which encompasses the categories of rape, sodomy, and sexual assault with an object that are used in the UCR National Incident-Based Reporting System (668.46(a)); 

· Revise the categories of bias for the purposes of Clery Act hate crime reporting to add gender identity and to separate ethnicity and national origin into separate categories (668.46(a)); 

· Require institutions to provide to incoming students and new employees and describe in their annual security reports primary prevention and awareness programs which meet the requirements in the regulations (668.46(a)); 

· Require institutions to provide, and describe in their annual security reports, ongoing prevention and awareness campaigns for students and employees (668.46(a)); 

· Define the terms ‘‘awareness programs,’’ ‘‘bystander intervention,’’ ‘‘ongoing prevention and awareness campaigns,’’ ‘‘primary prevention programs,’’ and ‘‘risk reduction” (668.46(a)); 

· Require institutions to describe each type of disciplinary proceeding used by the institution; the steps, anticipated timelines, and decision making process for each type of disciplinary proceeding; how to file a disciplinary complaint; and how the institution determines which type of proceeding to use based on the circumstances of an allegation of dating violence, domestic violence, sexual assault, or stalking (668.46(b)(11)(vi)); 

· Require institutions to list all of the possible sanctions that the institution may impose following the results of any institutional disciplinary proceedings for an allegation of dating violence, domestic violence, sexual assault, or stalking (668.46(k)(1)(iii)); 

· Require institutions to describe the range of protective measures that the institution may offer following an allegation of dating violence, domestic violence, sexual assault, or stalking (668.46(k)(1)(iv)); 

· Require institutions to provide for a prompt, fair, and impartial disciplinary proceeding in which:  (1) officials are appropriately trained and do not have a conflict of interest or bias for or against the accuser or the accused; (2) the accuser and the accused have equal opportunities to have others present, including an advisor of their choice; (3) the accuser and the accused receive simultaneous notification, in writing, of the result of the proceeding and any available appeal procedures; (4) the proceeding is completed in a reasonably prompt time frame; (5) the accuser and accused are given timely notice of meetings at which one or the other or both may be present; and (6) the accuser, the accused, and appropriate officials are given timely and equal access to information that will be used during informal and formal disciplinary meetings and hearings (668.46(k)(2)); and

· Define the terms ‘‘proceeding” (668.46(k)(3)(iii)) and ‘‘result” (668.46(k)(3)(iv)). 

· Specify that compliance with these provisions does not constitute a violation of section 444 of the General Education Provisions Act (20 U.S.C. 123220 U.S.C. 1232g), commonly known as the Family Educational Rights and Privacy Act of 1974 (FERPA).

### Entities Subject to the Rule

The U.S. Small Business Administration (SBA) Size Standards define for-profit institutions as ‘‘small businesses’’ if they are independently owned and operated and not dominant in their field of operation with total annual revenue below $7 million. The SBA Size Standards define nonprofit institutions as ‘‘small organizations’’ if they are independently owned and operated and not dominant in their field of operation, or as ‘‘small entities’’ if they are institutions controlled by governmental entities with populations under 50,000. The number of Title IV, HEA-eligible institutions that are small entities would be limited because of the revenues involved in the sector that would be affected by the regulations and the concentration of ownership of institutions by private owners or public systems. However, the definition of “small organization” does not factor in revenue.  Accordingly, several of the entities subject to the regulations are “small entities,” and the Department has prepared this Small Entity Compliance Guide.

The new regulations apply to institutions of higher education that participate in the Title IV, HEA Federal student financial aid programs, other than foreign institutions of higher education. According to the most recent data in the 2012 Campus Safety and Security Survey, the Department estimates that approximately 7,230 institutions are subject to these regulations, including 2,011 public, 1,854 private nonprofit, and 3,365 private for-profit institutions. Of these institutions, all of the private nonprofit institutions and approximately 40 percent of the private for-profit institutions are considered small entities. The Department does not believe any of the public institutions meet the definition of ‘‘small entity.’’

### Description of the Projected Reporting, Record-keeping, and Other Compliance Requirements of the Regulations, Including an Estimate of the Classes of Small Entities That Are Subject to the Requirement and the Type of Professional Skills Necessary for Preparation of the Report or Record

#### Estimated Paperwork Burden on Small Entities

Table 1 shows the estimated number of hours and costs to collect required information under specific provisions for small entities. Estimated hour and cost burden of each information collection requirement is discussed in more detail under the Paperwork Reduction Act of 1995 section (page 62780) of the final regulations. It is expected that additional workload would result in increased costs with the hiring of additional employees or opportunity costs related to the reassignment of existing staff from other activities. In total, by taking 100 percent (for the private nonprofit institutions) and 40 percent (for the private for-profit institutions) of the estimated burden hours detailed further in the Paperwork Reduction Act of 1995 section of the final regulations, these changes are estimated to increase the burden on small entities participating in the Title IV, HEA programs by 34,401 hours annually. The monetized cost of this additional paperwork burden on institutions, using a $36.55 wage rate developed using Bureau of Labor Statistics (BLS) data is $1,257,357.

The various provisions in the final regulations modify or increase the paperwork burden on entities participating in Title IV HEA programs. Table 1 illustrates the burden imposed upon small entities in order to comply with the revised regulations. This section explains why the burden may be greater for small entities.

TABLE 1—ESTIMATED PAPERWORK BURDEN ON SMALL ENTITIES

Note: “Reg. section” refers to the specific section in the regulation where description can be found.

The OMB Control Number is a number assigned to OMB approval of an information collection. Agencies must display the number on information collections.

#### Annual Security Report 

The Department recognizes that small entities may need to hire additional employees to collect and report the required statistics. However, each of the elements of these provisions must be addressed. 

#### Crime Statistics 

Institutions will incur costs associated with the additional reporting and disclosure requirements of the regulations. The additional workload may result in costs associated with either the hiring of additional employees or opportunity costs related to the reassignment of existing staff from other activities, especially in smaller institutions without campus law enforcement or campus security personnel. However, as stated above, each of the elements of these provisions must be addressed.

#### Statement of Policy – Awareness and Prevention Programs 

The development of programs to prevent dating violence, domestic violence, sexual assault, and stalking may be time-consuming and expensive to implement, especially for small institutions. To avoid the costs associated with the training requirement, institutions may work with rape crisis centers and State sexual assault coalitions to develop training that addresses the needs and environments of small campuses. Resources referenced by the White House Task Force to Protect Students from Sexual Assault may also be of support as institutions make these changes.  

#### Statement of Policy – Institutional Disciplinary Proceedings  

Implements the statutory changes requiring an institution that participates in any Title IV, HEA program to  include a statement of policy in its annual security report addressing the procedures for institutional disciplinary action in cases of alleged dating violence, domestic violence, sexual assault, or stalking.  

For an example, the final regulations require that an institution’s disciplinary proceeding provide the accuser and the accused with the same opportunities to have others present, including the opportunity to be accompanied to any related meeting or proceeding by the advisor of their choice. Small institutions may consider forming a pool of individuals, including members of the campus community, who may serve as advisors as long as the choice of an advisor by the accused or the accuser is not limited to such a pool.

***Resources to Support Compliance Among Small Entities***

The final regulations are on the Department of Education’s Web site at http://www.gpo.gov/fdsys/pkg/FR-2014-10-20/pdf/2014-24284.pdf.

For additional tools and materials provided by the White House Task Force to Protect Students from Sexual Assault, please visit http://www.notalone.gov/schools. 

The Department has also released suggested resources to help support the sharing of information that postsecondary institutions may use to inform and tailor their campus sexual assault training and prevention efforts, available at http://www2.ed.gov/documents/press-releases/suggested-resources.pdf.

Resources to aid institutions in complying with requirements of Campus Security are posted on the Department’s Web site. Among the resources is the Handbook for Campus Safety and Security Reporting. These resources can be found at:  http://www2.ed.gov/admins/lead/safety/campus.html.

##### Technical Assistance/Contacting the Department of Education

The Department of Education’s Office of Postsecondary Education is happy to assist small entities with questions regarding the Clery Act. Please direct questions to the help desk by telephone at (800) 435-5985 between the hours of 8:00 a.m. to 6:00 p.m. ET or by e-mail at campussafetyhelp@westat.com.

06/19/2015

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