# U.S. DEPARTMENT OF EDUCATION

# TITLE IV NEGOTIATED RULEMAKING TEAM

**TEAM II: PROGRAM AND ELGIBILITY ISSUES**

**Meeting Summary**

**January 16 -18, 2002**

# Washington, DC

## Welcome

Jeff Andrade, Special Assistant to the Deputy Secretary, and Eric Jaso,
Deputy General Counsel, welcomed the negotiators to this round of
negotiated rulemaking. They explained that the negotiating agenda for
both Teams was created in response to issues raised by the higher
education community through the FED UP process, initiated by U.S
Representative Howard "Buck" McKeon and U.S Representative Patsy Mink to
reduce regulatory burden. Undersecretary Eugene Hickok offered his
encouragement and appreciation to Team II participants. He stressed the
long-term importance of these regulatory negotiations on improved access
to education for Americans nationwide.

## Introductions

The negotiators and facilitators introduced themselves.

## Review and Adopt Protocols

This Team used the revised organizational protocols adopted by Team I as
the initial draft for discussion. The Team adopted the organizational
protocols with amendments, after detailed discussion of Sections II, IV
and V.

Section II: [Participation]{.underline} discussion centered on adding
second alternates for some coalitions and refining coalition partner
lists based on common interests, which resulted in the addition of a
second alternate to the 4-year private, not-for-profit colleges and
universities. Team negotiators will inform the facilitators of
additional changes regarding their coalition partners by January 28,
2002.

Section IV: [Agreement]{.underline} discussion clarified the meaning and
implications of reaching consensus and the ability of coalition partners
to dissent. It is the negotiators' responsibility to communicate
extensively with coalition partners throughout this regulatory
negotiation and seek a common view that can ultimately lead to consensus
with all the other negotiators. However, if consensus is reached among
the negotiators, a coalition partner that cannot accept the consensus
will retain the right to comment negatively on that issue. The
negotiator is obliged to express the dissenting view of a member of
his/her coalition and it will be noted in the meeting summary

Section V: [Committee Meetings]{.underline} discussion confirmed that
the facilitators will prepare and circulate draft summaries to
negotiators. The negotiators will circulate the draft to coalition
partners. Meeting summaries will become public after approval by the
committee. In this section of the protocols the Department agrees that
"to the extent practicable, the Department will provide members with
documents for discussion at committee meetings at least seven days in
advance of the meetings." Other negotiators explained that it would be
preferable for documents to be circulated earlier than seven days in
advance of the meeting so that negotiators will have more time to study
the draft language with their coalition members.

Other points raised in the discussions about Team II protocols included:

-   The Department will provide the draft preamble to the Team, within a
    reasonable amount of time prior to publication of the Notice of
    Proposed Rule Making (NPRM), to provide negotiators with the
    opportunity to comment on the preamble and to resolve any concerns
    prior to publication of the NPRM. The Department also explained that
    their goal is to include substance into regulatory language rather
    than into the preamble.

-   Since the preamble is not negotiated, and therefore, is not
    consensus-based language, Team members are free to comment
    negatively on the preamble. By contrast, if the Team reaches
    consensus on the negotiated regulatory language, members agree to
    not comment negatively on those provisions.

-   The Department explained that it created coalitions to reduce the
    committee size and increase the efficiency of the negotiations,
    while trying to ensure that all sectors of the higher education
    community are represented. This was done partly in response to
    feedback after previous Department regulatory negotiations
    suggesting smaller committees.

-   Negotiators raised questions and concerns regarding the coalitions
    they were asked to represent as well as the Department's selection
    of the coalitions' negotiators.

-   Several negotiators and coalition partners stated that they did not
    want the Department to consider their acceptance of the coalition
    structure and selection process to create a precedent for future
    Department of Education negotiated rulemakings, especially those
    following the 2004 re-authorization of the Higher Education Act.

-   Draft meeting summaries will be prepared by the facilitators and
    distributed to Team negotiators within two weeks of the close of
    each negotiating session. Each negotiator will inform the
    facilitators if s/he has comments on the meeting summary or not. If
    no negotiators propose changes to the draft summary, it will become
    final prior to the next meeting. If negotiators do propose changes
    to the summary, the draft summary and suggested changes will be
    discussed and resolved at the following meeting.

### [Public Comment (on protocols)]{.underline}

Becky Timmons of the American Council on Education (ACE) requested that
ACE be removed from the three coalitions it was listed belonging to in
the draft protocols. She distributed a letter from the President of ACE
to the Secretary of Education outlining ACE objections to the Team
structure and negotiator selection process.

## Petitions for Membership

Diane Rogers of the Council for Higher Education Accreditation (CHEA)
petitioned the Team to expand the accreditation agencies role on the
Team beyond the 12-hour rule issue to allow their full participation in
Team [decisionmaking]{.underline} on all issues. There was not a
consensus for this change. The Team did agree to allow accreditation
agencies negotiators to participate in Team [discussions]{.underline} on
all issues.

Janel Casera of the National Direct Student Loan Coalition (NDSLC)
petitioned for membership on the Team. One member dissented from
approving this petition, and therefore, the petition for participation
was denied.

## Review and Finalize Negotiating Agenda

The Team discussed the draft final agenda of issues, which included the
list of issues circulated at the December 14, 2001 preliminary meeting
and additional issues identified in the weeks since that meeting. The
Department proposed 3 additional issues, all of which were accepted by
consensus. The Team also decided to retain and expand the issue from FED
UP #36, entitled "no fault late disbursements," on its negotiating
agenda notwithstanding that Team I had indicated its intent to address
the issue. In addition, FED UP #94 was expanded to include a discussion
on the possibility of permitting defaulted borrowers, who voluntarily
make all payments due on past due accounts, to regain eligibility for
all Title IV funds, not just Perkins Loan funds. Team II agreed to
provide Team I opportunities for input on the issue. Other possible
negotiating items were discussed but none received consensus support.
The Team reached final consensus on its negotiating agenda, which
includes 25 issues. The final negotiating agenda will be posted on the
listserv.

### [Workshop Style Review of Issues]{.underline} 

The primary objective of these discussions was to provide the Department
sufficient information to develop draft negotiating language or other
solutions, as appropriate. For each topic, the federal negotiator
described the Department's understanding of the issue and then solicited
information, advice, concerns, and interests of the Team members with
regard to the issue.

## Public Comment (on issues)

Janel Casera, of NDSLC and Director of Financial Aid, Virginia
Commonwealth University, offered comments on three Return of Title IV
Funds issues: Attendance, 50% Grant Protection, and Timely Refunds.

## Next Meeting

The Department will provide draft regulatory language for issues
designated and agreed to as "quick fix" items by January 28, and for all
other issues, at least seven days prior to the next Team II negotiating
session. The next session convenes at 1:30 Wednesday March 6, ending
Friday March 8, 2002, during which the Team will undertake a thorough
review of each issue in an attempt to reach tentative agreements on each
item. The agenda for the session will indicate the expected order of the
topics. Please note that it is not possible to predict how long each
topic will require and the Team may decide to change the order from the
draft agenda for the session.