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Negotiated Rulemaking 10/8/2021 

DEPARTMENT OF EDUCATION 

OFFICE OF POSTSECONDARY EDUCATION 

AFFORDABILITY AND STUDENT LOANS COMMITTEE 

NEGOTIATED RULEMAKING SESSION 1, DAY 5, AFTERNOON 

OCTOBER 8, 2021 

On the 8th day of October 2021, the following 

meeting was held virtually from 1:00 p.m. to 4:00 p.m., 

before Jamie Young, Shorthand Reporter in the state of 

New Jersey. 
 

 

 

 

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P R O C E E D I N G S 

MR. TOTONCHI: Welcome back committee and 

public from lunch. We hope you had a good lunch and a good break, 

ready to dive into the afternoon. But first, a few notes. Number 

one, we want to thank the committee for your proposed suggestion 

regarding amending the agenda. As you know, the protocols empower 

FMCS to develop the agenda. We will, we will move on from after 

we finish issue ten, we will move to twelve. Okay, and then 11. 

There's just a little bit of a caveat, we want to make sure to 

get to all the issues today. Okay. We've generally been taking a 

break around 2:15 Eastern or so. We will do that today. When we 

come back from that break, regardless of where we're at on issue 

12, we will move into false certification. Okay. Persis, I see 

your hand. Proceed. 

MS. YU: Thank you. I was hoping that we could 

just quickly wrap up the default discussion from this morning. 

And I just wanted to start with a question for the department, a 

clarifying question that as we are negotiating the topic of 

income driven repayments that I see on the issue paper that we 

have noticed one set of regulations, but on the notice itself, 

the notice of intent, there were more regulations. And so, I 

wanted to confirm that as we were discussing the income driven 

repayment plans that any of the HEA implementing regulations 

that implicate income driven repayment are up for discussion at 

this rulemaking. 
 

 

 

 

 

 

 

 

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MS. HONG: Yes, I think the answer is yes. 

With the condition that we're, you know, this, this will be an 

income-contingent repayment (inaudible). 

MS. YU: So not, so not the income. So, I 

guess the question was, right, because income, right. So, it's 

framed as income driven repayments, income based repayment, the 

note the regulations on that were noticed in the department's 

notice of intent, and those are not. So, you're saying that 

those regulations as well as the forced income driven repayment 

regulations are not a part of this negotiation? 

MS. HONG: Right. So, our authority to 

develop an income-driven repayment plan is through the incomecontingent repayment plan. 

MS. YU: Is the issue about your authority, or 

is the issue about what's been noticed? 

MS. HONG: It's our authority. I'm sorry, 

you're saying what we noticed initially? I think Brian’s chiming 

in, and he can better articulate this (inaudible). 

MR. SIEGEL: Our, we have more, we have more 

discretion in how a plan is developed under ICR than under IBR. 

So, our ability to do more of what the department wants to 

achieve, and what I think a lot of committee members want to 

achieve, it, it is more likely to come under the ICR plans than 

under IBR. Now there is a possibility that some, you know, 

there'll be some technical change (audio) IBR as a result of the 
 

 

 

 

 

 

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changes that are made or the new plan that's made in ICR, but 

our emphasis will be on the ICR. 

MS. YU: I appreciate that as your emphasis I 

just want to, to just procedurally clarify that the other ones 

can be implicated and discussed at this rulemaking. 

MS. HONG: Yes. 

MR. SIEGEL: Yes. 

MS. YU: Okay, thank you for that 

clarification. And so then I, I will just say that I am not 

going to ask for a consensus vote on the discussion and what I 

am going to not propose but suggest out loud is that we will be 

coming up with some language for the department to consider on 

how to use the HEA and the implementing regulations of the 

income-driven repayment plan to craft a proposal for the 

department on how to better protect defaulted borrowers. And 

while I'm not asking for a working group, I would like to invite 

any members of the committee to reach out to me to be included 

on such an informal group of people that would like to discuss 

these topics and how to best draft these proposed regulations. 

So that is what I will say on the topic. And any folks, I will 

drop my email address in the chat for those who do not have it. 

And any, any negotiators at the table or alternates are welcome 

to reach out to me to be a part of this informal discussion. 

MS. JEFFRIES: (Inaudible). 

MR. TOTONCHI: Oh, someone needs to mute. 
 

 

 

 

 

 

 

 

 

 

 

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MS. JEFFRIES: (Inaudible). 

MR. TOTONCHI: Hold on hold on before 

Jennifer, before you go, I want to make sure everyone's muted. 

MS. JEFFRIES: Okay, girls. 

MR. TOTONCHI: Yeah, we have someone who's 

speaking that needs to mute. Can we find that person, please? 

MR. TOTONCHI: Okay, thanks, Brady. Jennifer, 

please proceed. 

MS. HONG: Just quick response, we welcome, we 

welcome those suggestions, particularly to the extent that you 

could have proposed regulatory text for us to look at. 

MR. TOTONCHI: Alright, folks, and just one 

more clarifying point on kind of the agenda for the afternoon. 

Again, after the break, we will move into false certification, 

regardless of where we at on issue paper twelve. However, if we 

finish, you know, early, and there's still time for closing 

remarks, and there's a little time to continue issue twelve 

we'll do that as well. We'll make sure we use every minute we 

have together today. Alright. So, with that, we will pick up and 

finish our discussion on issue paper ten. So, I ask, are there 

any remaining comments and questions eight and nine regarding 

IDR? 

MS. JEFFRIES: Emil? 

MR. TOTONCHI: Yes? 

MS. JEFFRIES: Before they start raising their 
 

 

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hands, I just want to recognize that for this afternoon, Eric 

Apar is taking over for the state attorneys general. 

MR. TOTONCHI: Thank you, Cindy. Any remaining 

comments and questions eight and nine regarding IDR? Persis. 

MS. YU: So, question nine references the GAO 

report, is that, that's what we're discussing as issue, as 

question nine correct? Okay, thank you. So yeah, so I just 

wanted to emphasize how important the ability of low-income 

borrowers to self-certify that they have no taxable income is to 

my clients. I find the report by the GAO, I find, I find the 

language in the report concerning in that it raises the 

possibility, you know, the possibility of fraud and not actual 

fraudulent activity. And so, as we are going through, as we're 

going through this discussion, and how we implement incomedriven repayment plans, I want to emphasize that it is really 

important, both in terms of automation, but also in terms of 

simplicity, that borrowers who have no income should be able to 

self-certify that they have no income. It is incredibly 

challenging to prove a negative. You know, when this when this 

change was made to the forum to allow this, it was hugely 

beneficial to my clients. My clients prior to this change, had, 

were running around in circles trying to figure out how do you 

document the fact that they don't work. The ability to selfcertify has been critical to ensuring access to IDR for lowincome folks, and I would urge us to continue to allow that as 
 

 

 

 

 

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an option. Thank you. 

MR. TOTONCHI: Thank you, Persis. I see John 

has his hand up. Proceed, John. 

MR. WHITELAW: I just wanted to echo what 

Persis said. As a longtime Legal Aid attorney, I cannot tell you 

how many dozens and hundreds of times we have worked with people 

trying to prove negatives. How do you prove you don't have money 

in a bank account if you, throughout the entire country, proving 

negatives is excruciatingly painful and difficult and, and often 

impossible, other than with, same, doesn't mean necessarily that 

(inaudible) doesn't mean you can't, you always have to take it 

at face value. It's clearly not accurate but allow them 

generally allowing people to self-certify especially with 

respect to negatives. Crucially important to low-income folks, I 

can just tell you this, we have been tripped up by this and a 

huge variety of different contexts with different agencies 

across multiple states and federal agencies. It is a very 

significant issue in terms of not so much big picture policy, 

but the mechanics of how things work. And I think we really do 

need to get into the weeds on these things. 

MR. TOTONCHI: Thanks, John. Michaela. 

MS. MARTIN: I just wanted to take the 

opportunity to challenge the presumption that poor people lie a 

lot. Because I think that often in our social services, you 

know, somebody who's on section eight and receives a lot of 
 

 

 

 

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public benefits, it's constantly presumed that whatever I'm 

saying isn't true, right? And so that causes like so much more 

paperwork? And like, again, how do I prove that I don't have 

things if I don't have them, because then I don't have proof to 

show that I don't have them. We’re like in another one of those 

circles, where we are just chronically putting people that are 

poor, in this framework of they're going to be liars, and 

they're going to defraud the government. And that's true even 

for the state boards, right? The ABA says that if you owe money, 

you have to go and prove yourself through a character fitness 

test, because poor people are bad people. And I just needed to 

voice that. Thank you. 

MR. TOTONCHI: Thank you. Daniel, you're 

likely the last comment on this, before we move on. 

MR. BARKOWITZ: I would just I would just echo 

aloud what I've put in the chat. If it's, if we are envisioning 

how allowing students who apply for financial aid through the 

FAFSA, or parents to confirm the lack of an income tax and 

without need to go further, if we can do that through the FAFSA, 

under the new regulations coming, you can do that here. So 

again, plus, you know, 1000 or a million to automation and 

trying to connect this without a need for a further 

documentation would be really highly supported. 

MR. TOTONCHI: Dixie, and then I'd like to tee 

up a temperature check. 
 

 

 

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MS. SAMANIEGO: Yeah, also 1000 plus 

(inaudible) Michaela, I also agree, but also on the other side 

of it is like, stop criminalizing poor folks or harassing them. 

And Noelia made this point, and in my own experience, most of 

the time, we're asking for documentation of poor people that we 

cannot produce, that we cannot get access to, that it's 

difficult already to get access to. Right. And this also brings 

up the point that we've made very clear previously is that 

there, it's hard to understand these documents, right? So, 

they're -- it's not just that we can't have access to the 

documentation that we're being asked to present. But it's also 

that understanding this is difficult. And so, I really want to 

emphasize a point that Michaela and Noelia made into the chat 

that Michaela said, super important to stop harassing low income 

folks. And it's just having the, the framework that all poor 

people are trying to defraud, or like, take advantage of things 

when these things are there to help poor folks, right. And so 

self-certification is super important. And poor folks aren't 

just trying to scheme up ways, right? No. Like what we're trying 

to do is figure out a way for us not to be poor anymore, right? 

So super important point. 

MR. TOTONCHI: Marjorie I see your hand, you 

can, you can proceed, I just want folks to be mindful of how 

much we have to accomplish before the public comment period. 

Okay. Go ahead, Marjorie. 
 

 

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DR. DORIME-WILLIAMS: Yeah, so I just I also 

wanted to think about this in the other direction. And we'll 

sort of put it in the chat as well, the assumption that it's low 

income and poor bars who are doing the fraud, when there's no 

indication that we have any information about any of that. I 

think Varsity Blues is a great example that show that 

significant widespread fraud happens in higher education that 

isn’t perpetrated by low income, first-gen, marginalized 

students. In fact, it's those who know how to game the system. 

And I think what the GOA points out is potentially an issue. But 

also, some of these numbers are relatively small. And so, I 

think that, yes, this is important. We don't want people abusing 

the system. But what I want to challenge this assumption that 

it's low-income borrowers who are doing that abuse, and too, 

like Daniel pointed out, there are several ways that we've 

already created checks for income and family size, again, 

looking to existing data sources like IRS. And so, I would 

strongly recommend not using this to penalize borrowers, but to 

find those instances where folks who are gaming the system 

absolutely are caught but, but I don't want this to become 

simply about burdens on low income borrowers. 

MR. TOTONCHI: Thank you, Marjorie. So, my 

instinct is to tee up the following temperature check for 

tentative agreement, tentative agreement on a concept. Okay, 

Jen, if you'd like more specific guidance than this, please jump 
 

 

 

 

 

 

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in. But --

MS. HONG: Yeah. 

MR. TOTONCHI: Essentially, oh go ahead tee it 

up. 

MS. HONG: I'll just, you know, because this 

was so open ended this was really about information gathering at 

this point, I think. I don't I don't know about a temperature 

check is necessary on this issue at this point in time. 

MR. TOTONCHI: Sounds good, I was going to 

suggest a very open ended one, so okay. Excellent. So, with 

that, you know, pursuant to the change in our agenda, we'll be 

moving on to issue, issue paper twelve. Jennifer, if you could 

take us through that, please. 

MS. HONG: Sure, I’d be happy to. So, this is 

issue paper number twelve, regarding establishing in regulation, 

a framework that an institution must follow to initiate and 

maintain a prison education program. So, in December 2020, 

Congress passed the Consolidated Appropriations Act of 2021, 

which allows incarcerated individuals to access Federal Pell 

Grant funds for qualifying prison education programs, which we 

will refer to as PEPs. This permanent change codifies much of 

the Second Chance Pell experience, experiment created by the 

Obama administration, and expanded by the Biden administration, 

which allowed incarcerated students to access Pell Grants. So, 

the new statute on prisoner education programs takes effect on 
 

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July 1, 2023. We found that the research shows that high-quality 

prison education programs increase learning and skills among 

incarcerated students, increases the likelihood of stable 

employment and reduces the likelihood of recidivism. So, one of 

the things you want to do is want to clearly define quality 

indicators and ensure that students who are incarcerated are 

offered high quality programs. One of the things we noticed that 

within a corrections facility there's generally at best one 

post-secondary institution offering prison education programs. 

And given this, incarcerated students have very limited options 

and cannot feasibly apply their Pell Grants to a different, 

potentially higher quality institution. Thus, we want to ensure 

that incarcerated students apply their Pell Grants to quality 

programs. So, as you know, we plan to seek input from the 

subcommittee on implementation of the new statute and to bring 

their recommendations back to this full committee for a vote. 

And that's why we had put this actually last because I don't 

know how much of a fulsome discussion, we can have on this issue 

short of hearing for the subcommittee. So, you know, the 

subcommittees will meet October 18 through 20th and November 8 

through 10th. And, and we are hoping to provide some proposed 

regulatory language late next week. And just to kind of go over 

some of the things that we hope to gain input from the 

subcommittee, there's some issues with regard to student 

eligibility. Congress amended section 484T of the HEA to allow 
 

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confined or incarcerated individuals to access Federal Pell 

Grant funds to enroll in a PEP. Issues of institution 

eligibility, the statute states that public, private nonprofit 

or vocational post-secondary institutions may offer a PEP. The 

post-secondary institution cannot have been subject in the last 

five years to various adverse actions by the department, or the 

institution's accrediting agency or the state. Issues of program 

eligibility in addition to fulfilling all other applicable 

program eligibility requirements; the Federal Bureau of Prisons 

the applicable State Department of Corrections or other entity 

that is responsible for overseeing correctional facilities must 

determine that the PEP is operating in the best interest of 

students. Credits earned in the program must be transferable to 

at least one post-secondary institution, and a confined or 

incarcerated individual receiving a Pell Grant cannot be 

enrolled in a PEP that is designed to lead to licensure 

employment of formerly incarcerated individuals. As far as 

reporting goes, annual reporting from P -- participating postsecondary institutions as well as an evaluation by the 

department. I’m not going to go into great detail of the areas 

that we plan to regulate proposed regulation on again, because I 

think we need to hear from the subcommittee first. I'll just 

read it aloud: we want to codify additional location status, 

provide conditions of institutional eligibility. We also need to 

clarify the date, extent and duration of eligibility and 
 

 

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eligibility removal procedures, ensure that institutions report 

additional PEPs at additional locations, codify the definition 

of quality indicators for eligible programs, and define 

prohibitions and licensure. We also want to clarify how existing 

accreditation procedures might apply to these PEPs. We also want 

to create a smooth transition from Second Chance Pell. And too 

(inaudible) we want to provide disclosures to help students 

understand their options. We want to describe the process for 

reporting and to provide technical changes to conform with the 

statute. So those are some of the things that are on the table. 

For this issue, I can open up to discussion here. Aaron 

Washington on our team is leading the subcommittee on this 

effort. So, he may be available for questions as well. 

MR. TOTONCHI: Thank you for teeing that up, 

Jennifer. And, you know, a couple things, I just want to repeat 

something Jennifer said regarding, you know, the subcommittee 

meeting on the 18th 19th and 20th of October, there’ll be, I'm 

sure very in-depth discussion there. We will not take you know, 

each point by point in terms of each different posed changes and 

take like a, you know, a temperature checks on each, we're just 

going to discuss the paper as a whole. Okay, for our purposes 

here, and we will try to get in at least you know, a temperature 

check or tentative agreement, you know, on, on these concepts 

prior to moving, prior to moving on later. Okay. So, with that, 

I'll open it up to, oh, and I believe I need to mention, Stan 
 

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Andrisse has joined the committee for independent students. 

Okay. David, please proceed. 

MR. TANDBERG: Thank you. I’ll just say my, 

the constituency that I represent is thrilled to see the 

extension of the Pell Grant to incarcerated individuals and the 

attention of the current administration to incarcerated 

individuals and recently incarcerated individuals and providing 

opportunities for post-secondary education to those populations. 

With the, with the Pell Grant, we, there are some challenges, 

though, that are, that are introduced, that I think needs 

attention. And I'm struggling because I am not sure how much 

flexibility we have given the language in the Higher Education 

Act. But I would want us to push that as far as we can. One 

example is that, for thousands of incarcerated individuals, the 

primary means of accessing post-secondary education is via 

correspondence, because they don't have ready access to 

computers, or in-person instruction. This is critical. And with 

the Pell Grant, it could be read that those students, those 

incarcerated students wouldn't be able to use the Pell Grant 

towards the correspondence education. That means they will be 

perhaps unable to access support, affordable post-secondary 

education, it also likely means that those institutions offering 

those educational opportunities will lose enrollments. And these 

aren’t for-profit colleges. For example, in Colorado, public HSI 

Adams State University has one of the most popular prison 
 

 

 

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education programs provided almost entirely via correspondence. 

And so I would encourage some flexibility and interpretation and 

push these things as far as we can because, and they’re likely 

other examples where the statutory language around the Pell 

Grant was never written with the intent of it being used to 

provide access for incarcerated individuals and so we’ve got to 

explore what we can do regulatory, with the regulatory language, 

and then I know it goes beyond this committee, but also 

statutorily. Just putting that out there. 

MR. TOTONCHI: Thank you David. Daniel? 

MR. BARKOWITZ: Thank you, and a few topics 

for feedback. But first, I want to echo what David said about 

the complexities of Pell. And I also want to say that as a 

constituent group, we're very supportive of this program as well 

and the expansion of this program. A few thoughts, one a 

procedural question, one a more definitional question. So, from 

a procedural point of view, what I see ED highlighting in the 

proposal is the requirement for the first two PEP programs or 

prison education programs to be approved by ED. In addition, 

each location to be approved by ED. Location is already part of 

the approval process, when you add a location as an institution, 

you need to go through an approval process already anyway. So, I 

would really react I think, negatively to two PEP programs being 

asked to be approved, because the initial location already 

requires approval. So, it seems to me this sets a different 
 

 

 

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standard than any other program level. And I would, I would 

strongly urge that it'd be the first that requires specific 

approval not, not each individual or the second and beyond. The 

other issue is just to David's point about Pell, Pell as I 

understand it under the Second Chance Prison Program is not 

refundable above the basic cost of tuition and fees assessed in 

the program. And I just want to confirm because there's language 

about LEU here, I just want to confirm that for prisoners if 

they're unable to get the full benefit of Pell, so for example, 

if it's a $3,000 award and tuition’s only $1,500 that they 

wouldn't be dinged for the full value of the Pell for that 

semester, because of the limitation on the refundability of Pell 

Grant. I know I had more questions, technically, but I'll let 

that wait until we have a, a more deliberate proposal. Sorry, 

and to provide clarification for Jeri who asked LEU, LEU is 

lifetime eligibility limit, or lifetime eligible used. So, a 

student is limited to the equivalent of six years of Pell as an 

undergraduate. And that's based on the percentage of the full 

Pell that they've taken for their EFC level. So again, I don't 

want to penalize the student who's not able to get the full 

access to Pell, because of a rule the department set about 

refundability of, of the excess portion. 

MR. TOTONCHI: Folks, we have a somewhat 

unique hand that's being raised, and I'd like you, if you have 

any objections to me calling on him, please speak up. 
 

 

 

 

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(Inaudible) Aaron Washington from the Department of Education, 

who is leading the subcommittee, he's going to be facilitating 

that coming up on October 18th. Any objection to him responding 

right now? I'm not hearing an objection Aaron please proceed. 

MR. WASHINGTON: Hi, everybody. My name is 

Aaron Washington. And I'll be leading the, facilitating one, one 

of the facilitators for the subcommittee has been mentioned. And 

I kinda wanted to just respond to some questions. I'm trying to 

write as fast as I can. Daniel had asked some pretty detailed 

questions, so I hope that if I didn't answer it specifically, 

then you would let me know. But I just want to start with David. 

David Tandberg’s question on correspondence programs. There is 

no statutory prohibition and, and the amendments to the Higher 

Education Act made by the Appropriations Bill, for 

correspondence education through prison, for prison education 

programs. In fact, I think you'll see that we proposed to amend 

the definition of additional location to incorporate the idea 

that if education is offered at a correctional facility through, 

primarily through correspondence education, that would be, the 

department would consider that an additional location.. So we're 

kind of letting the community know right now that correspondence 

education would be eligible as long as it met the definition of 

whatever, you know, posed language that we come to during the 

committee. Also, I also wanted to just clarify, I think, 

obviously, David, you know this, but, and Daniel you know this, 
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but just so that, for the community's awareness, there is a 

Pell, Pell, students that are enrolled in correspondence program 

are eligible for Pell. There are Pell formulas that are already 

outlined in the regulation. And there is a specific formula for 

Pell eligibility for correspondence programs. So I think, I 

think we're covered there. Can I get a thumbs up, David, or, 

alright, great. Okay. Moving on to Daniel's question, you talked 

about the approval process, there in setting a different 

standard than other programs. In the statutes in the authorizing 

statutes, there is a different standard already kind of baked 

into it. These prison education programs have to be not only 

state, authorized by institution that has state authorization 

and accreditation, but they also have to be approved by the 

Bureau of Prisons and State Department of Corrections. So 

there's already we're already creating a different, there's 

already a different standard created. And if you kind of dive 

further into the statute, these, the institutions offering the 

prison education programs can't be subject to any adverse 

actions by the accreditor, they can’t be subject to, I believe 

it's emergency action, termination, or suspension by the 

department and any revocation of ability to operate in the 

States. So there are, you know, several standards beyond what, 

what other programs would have to, do anyway. Now to the, the 

part about Pell LEU, I, maybe I need a little bit of 

clarification, Daniel, I apologize if I didn't get this, right. 
 

 

 

 

 

 

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But if a student doesn't use the Pell, the student doesn't, if 

the student, the Pell is actually not dispersed to the student 

because the student didn't enroll in the program that would not 

count, did not enroll in the course of the program or payment 

period, that wouldn't count towards the student’s LEU. It would 

be the, the, we are not proposing to amend the way in which the 

department calculates LEU. There's a provision in the 2021 

Appropriations Bill that states that the Pell cannot exceed the 

cost of attendance that would result in a credit balance. When I 

was in school, we will call it a refund. But I know the 

Department of Education speak amongst this committee, of course, 

we call it a credit balance, as defined I believe it's 668.164 

the cash management rule. So that's really what we were getting 

to, we were trying to what we intend to propose language to 

ensure that the Pell Grant doesn't result in a credit balance. 

But if the student is eligible for more, you know, Pell and in, 

and the Pell is required to be reduced per statute, that amount 

that is required to be reduced wouldn't be included in the 

student's LEU. It would it was just be -- so I hope, I hope I 

answered your question, and I get a thumbs up if I did or not. 

MR. BARKOWITZ: Yeah, that, that was the 

point. So --

MR. WASHINGTON: Oh, okay. 

MR. BARKOWITZ: I want to make sure if it was 

statutorily required to be reduced that it wouldn't be counted 
 

 

 

 

 

 

 

 

 

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against a student in that case. 

MR. WASHINGTON: Yes, you’re correct. 

MR. BARKOWITZ: Alright. 

MR. WASHINGTON: Alright. I know we got a lot 

more questions, so I'll go back on mute. Thank you. 

MR. TOTONCHI: Thank you. I just want to 

recognize Michale, for coming to the table on behalf of 

accreditation. Heather? 

MS. PERFETTI: Thank you. So I was going to 

indicate that Michael had some remarks that he wanted to make on 

behalf of accrediting agencies. But I will just indicate, while 

I have the floor, of accrediting agencies support for this, as 

well as our trusted experience in overseeing the programs at 

correctional institutions already and among the student 

population. But certainly, we're most interested in how the 

regulations may redefine some of those expectations. And so 

we're interested in the conversation and hearing from the 

subcommittee as well, but Michael did want to speak to this 

topic, too. 

MR. TOTONCHI: Michale is in the queue. So, 

you know, stand by Michale, if you wouldn't mind. I'm going to 

take Dr. McTier. 

DR. McTIER: Cool. 

MR. TOTONCHI: I remember where you are Mike, 

Okay, go ahead. Dr. McTier. 
 

 

 

 

 

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DR. McTIER: Okay, cool. I am Dr. Terrence 

McTier, currently the Director of our prison Education Project 

at Wash U. We are extremely supportive; Pell Grant being 

implemented to students. Look forward to working with a 

subcommittee to bring some of these other regulations to the 

forefront. I think some of the things that just to kind of 

consider in this negotiation process is really looking at 

students being penalized for involuntary transfer of 

institutions. And so, as we begin to think about implementing 

those Pell Grants, as students are moved from a facility, to 

another facility in the middle of their program, just taking, 

taking that into account. I think the other things is really, as 

many of my colleagues have talked about is accessing documents 

is going to be one of the biggest challenges for individuals who 

have been in prison for 15 to 20 years. I think that's going to 

be something that we have to (audio) out in relation to the 

FAFSA, but I'm not going to really go too deep because I know 

we're going to be having a conversation later on. I just wanted 

to kind of bring those, those issues up to the committee. So, 

thank you. 

MR. TOTONCHI: Thank you, Dr. McTier. Dixie 

you’re up. 

MS. SAMANIEGO: Yeah, first and foremost, I 

really want to, you know, some of my support for this, 

especially coming from the CSU, this last week, or actually 
 

 

 

 

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Negotiated Rulemaking 10/8/2021 

three days ago, CAL STATE LA had its first set of graduates from 

the prison education program, about 25 graduates making that the 

first folks who were incarcerated to have a Bachelor's degree 

from a public university in the state of California. So big ups 

to the CSU, but specifically CAL STATE LA. But also, my biggest 

question is really, how is the Department of Education going to 

make sure that (audio) Pell Grant, that incarcerated folks are 

receiving go to accredited schools, and not just accredited 

schools, but quality programs that are actually (audio) help 

these folks after they come out of, you know, incarceration, 

because that's my biggest worry, right? Because we all know that 

some of these folks are upon, you know, one of the demographics 

that are easily preyed upon, and you know, exploited. And so 

that's my biggest concern. And I don't want these folks to, you 

know, be taken advantage of, after wanting to, you know, pursue 

higher education and, you know, after all these hurdles that 

they've had to face, and then being taken advantage of, and so 

that's really my question for either Aaron or Jennifer at the 

department. What is the department going to do to ensure that 

folks aren't being exploited, when they finally get the chance 

to pursue higher education with the Pell Grant? 

MR. TOTONCHI: Thank you, Dixie. Marjorie? 

DR. DORIME-WILLIAMS: Thank you, Dixie, for 

those comments. And I would also add in consideration of 

quality, that when the department is looking at these measures, 
24 

Negotiated Rulemaking 10/8/2021 

so I see language around inputs and outputs, as well as looking 

at other groups to compare students who participate in these 

programs, sort of against and so one example is high school 

students who have not been in this program. And it seems like 

we're, we're comparing apples to pineapples. So, the challenges 

that students who were incarcerated or formerly incarcerated are 

facing are completely different than students who simply just 

graduated from high school, whether it's social, cultural, 

economic capital, whether it's thinking about the stigma that 

comes with having that as a part of a student's identity. And 

so, I want to make sure that when we're talking about these 

quality indicators, we're not sort of only thinking about common 

language that we're using in post-secondary education. 

Obviously, wages and employment are important, but we're 

actually paying attention to the experience of the students in 

the program. There are plenty of students, and this is, you 

know, not limited to prison programs, who graduate in spite of 

their education, not because of their experience in education. 

And I think this is one population that, particularly might be 

faced with that. And as Dixie pointed out, in programs that 

might seek to take advantage of this legislation or take 

advantage of students who are, I think, even more marginalized 

in any of the groups that we've talked about today. So, I just 

want to make sure that we're careful about what we're measuring 

and how we're measuring it. Because those are very different 
 

 

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Negotiated Rulemaking 10/8/2021 

experiences and the expectations for the students have to be 

different because of the things that they are going to be facing 

coming out of those situations. 

MR. TOTONCHI: Thank you, Marjorie. I 

understand that Jennifer will be coming to the table on behalf 

of student loan borrowers. Stan, you're up. 

MR. ANDRISSE: Happy Friday, everyone. Can you 

hear me okay? So, we've made it to Friday. I'm excited to be 

here with you all. As I mentioned on Monday, when we first 

started, I am a formerly incarcerated person who works with 

currently and formerly incarcerated individuals in the capacity 

of helping them pursue higher education. I was one of the 

leaders, along with many others in a coalition called the Unlock 

Higher Ed Coalition that worked to get this, you know, Pell 

restored for incarcerated students. And I just want to make a 

couple of comments, one being, I appreciate the language that 

many who have spoken on this topic, you know, we're using but I 

also just wanted to be aware that a few have used some 

disparaging language. I would ask the committee and also ask to 

consider in the language that's actually in the text, to stay 

away from language such as prisoner, convict, felon and center 

around people language: so, currently incarcerated individual, 

currently-incarcerated student, formerly-incarcerated person, 

etc. So that's, that's one thing that I want to add a comment 

towards. I wanted to ask about what is the power of the 
 

 

 

26 

Negotiated Rulemaking 10/8/2021 

subcommittee? So, to my, you know, I did not, you know, recall 

hearing another openly formerly-incarcerated person on the 

committee. So, you know, we've had a lot of language or talk 

around having dependent or excuse me, defrauded and defaulted 

students come speak and how it's important to have their voice, 

I would say it's important to have a voice of formerlyincarcerated people and students and leaders. And you know, I'm 

here, I know of a few others. But how do we get more of that 

voice? And I know there's more of that voice in the 

subcommittee, but then the subcommittee doesn't have the voting 

power. So, I was going to ask, what did we think about you know, 

leaning heavily on the recommendation that comes from the 

subcommittee since is made up of more individuals, closer to 

this topic being there's more formerly incarcerated people in 

that, and people that work in that field? And I think that's all 

that I wanted to comment on so thank you for, it's been great 

serving with you all. 

MR. TOTONCHI: Thank you so much, Stan, for 

your comment. Michale, you're hidden, but I know you're there. 

And Jennifer, Michale did have his hand up before you so we'll 

go to Michale. 

MR. MCCOMIS: Thank you. And I would just echo 

everything that's been stated so far, in significant support for 

moving forward. I've worked with a number of groups that have 

been working on this project for some time, and a lot of these 
27 

Negotiated Rulemaking 10/8/2021 

questions have, have come up. And from what I've seen, in the 

vantage point that I have kind of coming from the idea that all 

individuals, all individuals have access to quality education. 

Yeah, you know, I would urge this group and the department to 

think about more opportunities for us to really be monitoring 

the success of these programs. Because really wanting to make 

sure that the quality is there. I think that, you know, there's 

already been comments made about outcomes are going to be 

difficult to measure, so let's really make sure that we're 

looking at the inputs. And so the idea of only looking at some 

of those, while not wanting to be barriers to moving these 

programs forward, I think it'll be important for the for the 

committee to consider the extent to which, if not one, if not 

two, if not all additional locations, if not all, programs, PEP, 

should be reviewed by the accreditor by the state just to ensure 

that yes, and part of that is largely because these additional 

locations are not like other additional locations, insofar as 

the control that the college or the eligible, eligible 

institution will be able to exert there. They are a guest within 

the walls of that facility. And so, there's only so much they 

may or may not be able to effectuate through that agreement. So, 

the more I think that accreditation can review can look at the 

quality at the inputs at the faculty at the curriculum, because 

yes, outcomes will be a more difficult kind of assessment to 

make if you're, if we're looking at wages and employment. So, 
 

28 

Negotiated Rulemaking 10/8/2021 

let's focus on as much as we can, I think the input side of it, 

and, and keeping that on focus. My last comment is really just 

maybe a point of clarification. I don't I don't need it here 

directly, but this memo speaks to eligible institutions moving 

into an in providing education of PEP in the prison, I wonder if 

there's been any contemplation of the prison itself establishing 

its own, quote, unquote, eligible institution, acting as a 

school itself within and being able to apply for eligibility in 

that way. And if, if that is an allowance within the 

department's thinking and some of the other movement in this 

area, for it to be potentially in the future impendent, then 

maybe these regulations to con -- contemplate that as well. 

Thank you. 

MR. TOTONCHI: Thank you, Michale. Before we 

go to the next speaker, there are a couple of questions I think 

that are pending that need answering regarding just the work of 

the subcommittee and reporting back to the committee. Number 

one, there is, under the protocols, section 11E states that the 

subcommittee will provide timely recommendations to the 

committee. Committee may also request additional information, 

that means you, the committee, may request additional 

information from the subcommittee as needed. And as I 

understand, obviously, the subcommittee will be meeting October 

18, 19th and 20th. I understand that the subcommittee itself 

will decide how to report back to the committee in terms of who 
 

 

 

 

 

 

 

--

29 

Negotiated Rulemaking 10/8/2021 

is reporting back at the November, and December sessions. Okay. 

Alright, Jennifer? 

MS. HONG: Just to add to your remarks and 

thank you (audio). Oh. 

MR. TOTONCHI: Go ahead, sorry. 

MS. HONG: Okay. Sorry. Oh, Jennifer, you said 

MR. TOTONCHI: Jennifer, from ED go, and then 

Jennifer from student loan borrowers after. 

MS. HONG: I can wait, it's, it's just a 

response to procedures and Stan's comment. 

MR. TOTONCHI: Please, please do go. 

MS. HONG: Okay. Real quick, Jennifer, I just 

wanted to acknowledge Stan, your comment, which, we really 

wanted to get this right, which is why we constituted a 

subcommittee of all relevant parties to this issue, so that we 

can really get strong subject matter expertise. And the idea was 

to get that filter onto the main committee to make sure that the 

main committee was very knowledgeable about this subset of 

programs. Our challenge was balancing that against the 11 other 

issues that we had this main committee addressing. So, the idea 

was to really get all the substantive concerns and issues, all 

the technical information gathered by this subcommittee of 

different constituencies, and have a really clean reporting line 

to the main committee so that all those concerns could be 
 

 

 

 

30 

Negotiated Rulemaking 10/8/2021 

communicated through the affected constituency. That's why we 

set aside some, expressly set aside a subcommittee for that 

work. 

MR. TOTONCHI: I know, Jennifer, Student Loan 

Borrowers, I said you're next, but just the facilitator in me 

compels me to call on Stan really quick. Stan, go ahead. 

MR. ANDRISSE: Thank you, Jennifer. And thank 

you to all that, you know, the plus one, on your comments. And I 

mean, to (inaudible) idea, and I appreciate the approach that 

we're taking, honored to be here with you all incredible group 

of individuals. But you know, even with the, I'm concerned with 

the power of the subcommittee, so we have the subject matter 

experts. But, you know, there's, they don't hold any power. And 

I'm concerned, there's a little idea of how that is going to go. 

And I appreciate the extra information, Emil, that you just 

shared. But I think I would, you know, that why I was, you know, 

I don't know if this a consensus. And I don't think anyone would 

want to take a consensus to say that we will take the 

recommendation of the subcommittee. I don't take away your 

autonomy. I don't want to do that. But I just want to stress 

that it does have, you know, a good deal of experts that have 

been working on this for a long time. But that's the only 

additional comment I wanted to add at this time. 

MR. TOTONCHI: Thanks, Stan, for what, for 

what it's worth, if I can offer the following. One of the 
 

 

 

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Negotiated Rulemaking 10/8/2021 

beauties of the consensus space process is that and this 

probably doesn't address, you know, all the interest that you've 

raised, but one of the beauties of consensus is that the number 

of votes isn't relevant. It's just consensus. So, you'll be able 

to, and whomever the subcommittee empowers to present in 

November will be able to come and present and, you know, you 

have the power of consensus. So, each committee member does. 

Okay. So, Jennifer? 

MS. CARDENAS: So, the first thing is moving 

forward is, if Jennifer's okay, can I go by Jen? One I kind of 

like jump up every time I hear my name, but it's not my name. 

So, we have like a few more weeks of this in the next coming 

months. So, if you're okay with it, Jennifer, I'm gonna go with 

Jen. 

MR. TOTONCHI: We'll go ahead and change your 

name after your comments. 

MS. CARDENAS: Okay, secondly, I wanted to 

ask, I'm seeing that we have a program eligibility, what it 

means within those five years. And then application for date 

extension. Oh no, yeah, we see that ED also has the right to 

like, pull out if the post-secondary institution fails, I kind 

of want clarification on how those students will be protected if 

that happens, because we I see the eligibility for it for the 

institution. And I see how they could be denied after failing to 

provide for those students. But I want to see like, is there 
 

 

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Negotiated Rulemaking 10/8/2021 

like, unless I missed something, I just want clarification on 

how the students are going to be protected if that happens? And 

that's my question, thank you. 

MR. TOTONCHI: Thank you, Jen. If you could go 

ahead and write your question in the comments that might be 

helpful. Okay. Given you know, the fact that we have the 

subcommittee coming up, I'm inclined to call on Eric and Greg, 

and then we'll probably take a short break after that. Okay. So 

go ahead, Eric. There's a third person whose camera's off that 

we'll also call on. Go ahead, Eric. 

MR. APAR: Thank you. So, I just wanted to 

raise a quick concern about program eligibility. So, it says in 

the issue paper, this is the last sentence of the program 

eligibility paragraph. A confined or incarcerated individual 

receiving a Pell Grant cannot be enrolled in a PEP that is 

designed to lead to licensure or employment for an occupation, 

if that occupation typically prohibits licensure, or employment 

of formerly incarcerated individuals. So, I just want to raise 

for the subcommittee and I know that details are going to be 

flushed out later. But that determination as to whether an 

occupation typically prohibits licensure or employment can often 

be a very thorny one, and heavily contingent on state laws. So, 

in New Jersey, for instance, we have a fairly broad statute, 

regulating the licensure of formerly incarcerated individuals as 

a standard is whether the offense has a direct or substantial 
 

 

33 

Negotiated Rulemaking 10/8/2021 

relationship to the profession. And it's considered on a caseby-case basis. So, it's not necessarily the case that any 

occupation, you know, quote unquote, typically prohibits 

licensure. So, I would just encourage the subcommittee to think 

carefully about what exactly that means. That's on the licensure 

front. With respect to employment, I'm just curious as to how 

that's going to be measured. How are we going to determine 

whether an occupation typically prohibits the employment of 

formerly incarcerated individuals? 

MR. TOTONCHI: Eric, if you could note that 

question in the comments, that would be great. Greg is next. And 

then Aaron will have the final comment, Aaron's off camera, but 

he will have the final comment. Go ahead, Greg. And I want to 

recognize Greg, for coming to the table on behalf of dependent 

students. 

MR. NORWOOD: Thank you. I just wanted to lift 

up two things that were kind of already said, but I wanted to 

just repeat them, because I think it's so important. Dr. McTier 

and I'm sorry, I don't remember the first name mentioned about 

the process to even get financial aid and or Pell Grants. As one 

who represents a constituency of dependent students, one of the 

most challenging things, I guess, if you will, with receiving 

financial aid, as a dependent student is trying to get 

documents, get information that you just don't have access to, 

and you're relying on someone else, to provide that information 
 

34 

Negotiated Rulemaking 10/8/2021 

in those documents for you. It's one of the most challenging 

things. And particularly if you come from a, you know, low 

income, or just a disorganized family, if you will, it could 

just be, it could be challenging. And so, I really hope that the 

subcommittee will think about how we can maybe create a separate 

process for those who are incarcerated, that will allow them to 

still have access to what financial aid has to offer, without 

having to go through the grueling process of trying to get 

documents that they don't have. And I think even, even more so, 

I think that the requirements on FAFSA like tax returns, things 

like that, if you've been in prison for an extended period of 

time, you haven't filled out taxes. So, all these different 

things would, would be an inhibitor. And so, I think it'd be 

critical that we look at creating a separate process for those 

who are incarcerated. But then secondly, I did want to likewise 

lift up what the state AG just mentioned, here is what I was 

thinking of wanting to lift up, but he did before me, was a hope 

that this covers that there, there's language in the writing 

that would give the impression, that those who are incarcerated 

would have limited options as to how they want to use that 

program. As to the kind of programming, the kind of career, 

whatever the case may be, I do hope that that's something that 

we challenge and look at differently, that I do hope that it is 

open to whatever field they wish to go to. And so those were the 

two things I want to lift up. But really this piece about 
 

 

 

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Negotiated Rulemaking 10/8/2021 

information gathering is so difficult, even as a dependent 

student who is not incarcerated. And so, I can only imagine the 

difficulty one who is incarcerated would have. 

MR. TOTONCHI: I'm muted, sorry. Aaron, please 

proceed. Thank you, Greg. 

MR. WASHINGTON: Thank you for allowing me to 

speak one last time, I realized that if I was going to try and 

answer every single question or chime in, then we would kind of 

go way beyond time. But I wanted to say thank you to Dr. McTier, 

Dixie, Marjorie, Stan, Michale McComis, Jen, Eric, and Greg, for 

all of your ideas. And I noted all of them down and we have 

notetakers at the department as well. So, while I couldn't get 

to answering your specific questions, just know I wanted to jump 

in there, but I know we have limited time. So, thank you so much 

for all those comments. 

MR. TOTONCHI: Thank you to the committee for 

the great discussion, I'd say initial discussion on this, and I 

certainly look forward to the report back from the subcommittee 

in November. At this stage, we will take a break. Okay. We're 

going to, let's round up to one, I'm sorry, that would be 2:05 

Eastern, a little short, but hopefully it's enough for you to 

take a quick break 2:05 Eastern, please be back in your seats 

and we will be ready to go. Welcome back from the break 

everyone, we are moving on to our final issue of this first 

week, false certification. Before we move into that, just a 
 

36 

Negotiated Rulemaking 10/8/2021 

heads up that I will need about five minutes prior to the public 

comment just to go over some kind of closing items so we can tee 

up our workup for our November, our November session. Okay, so 

that'll likely be about 3:25 or so. Jennifer, please proceed 

with a false certification. 

MS. HONG: Great, thank you Emil and thank you 

everyone for joining us on this last issue of the first session. 

We are on issue paper number 11. And that is improving borrower 

access to false certification discharges. Briefly in Section 

437C1 of the HEA authorizes the Secretary of Education to grant 

the false certification discharge to Direct and FFEL loan 

borrowers if the borrower's eligibility to borrow was falsely 

certified by the school or was falsely certified due to the 

crime of identity theft. In general, a borrower may qualify for 

full certification discharge if one, the borrower did not have a 

high school diploma or its recognized equivalent and did not 

meet the applicable alternative eligibility criteria. Two, the 

borrower had a status either physical or mental condition, age, 

criminal record or other circumstance that disqualified them 

from meeting the legal requirements for employment in the 

occupation for which the training program supported by the loan 

was intended. Three, the school signed the borrower's name on 

the loan application or promissory note without authorization, 

or four the borrower was a victim of identity theft. And here we 

see again, in the false certification regulations, we have two 
 

37 

Negotiated Rulemaking 10/8/2021 

separate requirements depending on when the loans were first 

dispersed either before July 1, 2020, or after July 1, 2020. We 

find that different false certification discharge requirements 

for different cohorts of borrowers are confusing, create equity 

issues that are challenging for the departments to implement. 

So, throughout the issue paper, you'll notice that we've 

provided examples of some of those differences and standards and 

procedures related to eligibility and the application process. 

We also find that current provisions in the regulations may be 

overly burdensome for borrowers. So with that being said, we're 

proposing standards to cover all false certification discharge 

claims, regardless of where the loan was first disbursed. We 

believe that this would provide more clarity to borrowers, 

ensure that all borrowers applying for false certification 

discharges are treated under the same standards. And the first 

solution that we're proposing is actually, I don't know how much 

discussion this requires, this is more technical in nature. You 

know, right, right now, the regulations, taking a step back, we 

don't have any proposed regulatory limits at this time. But for 

this piece, it currently ties into loan disbursement. And we 

just want to use borrower status regarding having high school 

diploma or its recognized equivalent or meeting the alternative 

to graduation from high school eligibility requirements at the 

time the loan was originated, originated, meaning the school has 

certified the loan and the loan was created within the FSA 
 

 

 

38 

Negotiated Rulemaking 10/8/2021 

system, not the kind of loan that was disbursed. So, it's just, 

it's just changing. You know, this disbursement language to 

origination language, just to ensure that students do in fact 

meet the title for eligibility requirements, and that 

institutions do not authorize loan disbursements to ineligible 

students. So that's just a technical change. We can discuss that 

if you like. I'll put myself on mute if anyone has any 

questions, otherwise, we can move on to the second one. 

MR. TOTONCHI: And I see a couple of comments. 

And you know, Jennifer, my instinct is to do temperature checks 

for temporary agreement as we go on the concepts. If that's not 

what you're looking for, please let me know. Daniel? 

MR. BARKOWITZ: Actually, I'm reading ahead, I 

rescind my question because you address it in the third point. 

So, I will turn it over to Josh. 

MR. ROVENGER: Thanks, I'll just start off by 

saying that we really appreciate that these regulations, 

proposed regulations that come are going to be retroactive for 

all borrowers, or rather, will cover all borrowers regardless of 

when they took out their loans. And as Persis and I have been 

emphasizing throughout this week, we think that should apply 

broadly to all the changes we've been discussing. And on this 

specific requirement, we're also in favor of this change. What 

we have found is that using the date of disbursement rather than 

origination essentially allows the school to falsify the 
 

 

 

 

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Negotiated Rulemaking 10/8/2021 

eligibility of a borrower and then try to cure it by allowing 

them to complete six credit hours of his or her program. I think 

our biggest question, and this may just be one that can only be 

answered at least the regular proposed regulatory language, is 

whether there's going to be a definition of origination, because 

we just want to make sure that however this is crafted, that 

it's (inaudible) to a time that's close to when the student 

actually signs the promissory note, and not a process that can 

be delayed inadvertently. 

MR. TOTONCHI: Excellent. Again, Jennifer. 

MS. HONG: So, Josh, if you could just again, 

put that suggestion in the chat. If it's anything, you know, 

that gets by to what you see in the parentheses there, that 

would be helpful. Thank you. 

MR. TOTONCHI: At this stage, I'd like to take 

a temperature check for tentative agreement on this concept 

suggested by the department. Let me see your thumbs. Dr. McTier? 

I can't see your thumb, can you please raise it remember, 

reminder to put it next to your head like this, folks? Can I see 

thumbs again? Once more. Okay, thanks. I don't see any thumbs 

down. Okay. Moving on to the next proposed solution. Jennifer, 

if you could see that up, please. 

MS. HONG: Okay, the next one is, okay to 

explicitly state in the regulations that all loans may qualify 

for the discharge based on false certifications of high school 
 

 

 

40 

Negotiated Rulemaking 10/8/2021 

diploma or equivalent, although the regulations applicable to 

loans disbursed on or after July 2020 still allow implicitly for 

false certification discharges based on falsifications by the 

institution, we just want to revise it and put that, for upfront 

so that it's quite, much clearer for borrowers. Straightforward 

as well. 

MR. TOTONCHI: If there are no comments or 

questions, I will, okay, there you go, Jessica. 

MS. BARRY: Sorry, I just have a quick 

question. We generally support this solution, but I have a 

question about coming back to fraud that we were talking about 

before. So, it's possible that some students may lie 

intentionally to an institution and the department, in order to 

access, or access federal student aid programs. We just want to 

make sure that when a student is lying and the lie was not 

forced or coached by an institution, that the department will be 

holding institutions accountable, will not be holding 

institutions accountable for false certification liability 

concerning high school completion. Is that true, Jennifer, that 

they won't be holding schools accountable? 

MR. TOTONCHI: Jennifer, if you want to mull 

over that, you can, if you have a response, that's great. If not 

Jessica, if you could note that question in the chat, please. 

Okay. I do want to recognize Suzanne, coming to the table on 

behalf of state regulators. Josh? 
 

 

 

 

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Negotiated Rulemaking 10/8/2021 

MR. ROVENGER: Thanks. And I think this is a 

comment that also applies to some of the other discussions we've 

been having this week. But we're making broad policy here or 

proposing broad policy and to the extent that negotiators come 

to the table and discuss the possibility of fraud, and it would 

be helpful if that was supported by data or specific incidents, 

rather than this hypothetical concept that may or may not exist. 

MS. BARRY: Can I respond just real quick? I 

can drop an example into the chat. 

MR. TOTONCHI: Thank you, Jessica. Stan? 

MR. ANDRISSE: I'm sorry, but this may tie 

into, I may tie into a topic that we were just (audio) before 

but also tie to this one. What is the department's procedure on 

if individual's lie on the FAFSA? Question related to drug 

conviction, which, of course has been removed with this new 

change. But moving, you know, moving forward, how would it, you 

know, I'm not sure I know how it's going to be handling 

defaulted students. So, a lot of defaulted students who are 

incarcerated, were, due to their incarceration, having student 

loans before. So how is it handling that now that that question 

is no longer there? And also, I'm just, you know, how was it 

handling those questions? If there was somebody that lied on 

them before? And that, sorry, that's kind of towards a little 

bit of a mix of both this topic and the last. 
 

 

 

 

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Negotiated Rulemaking 10/8/2021 

MR. TOTONCHI: Looks like Brian may have 

reaction to that. Go ahead, Brian. 

MR. SIEGEL: Yeah, in general, if any party in 

the student financial aid program, students, school, whatever, 

once we identify who lied on a form or committed fraud, we 

pursue that liability through appropriate steps. It can include 

going after the school for liabilities, if it's the school 

that's at fault. It can be the student under the False Claims 

Act, that the, there's a certification that what you provide on 

any form is, is accurate and complete. You know, I, we don't, we 

don't track the number of fraud cases on either the state, the 

school side or the student side. So, I don't want to get into a 

debate over who's at more fault. It does happen on both sides. 

But no, I don't, I don't know that if you consider the size of 

the student loan program, particularly in regard to false 

certification. The number of claims of fraud on either side are 

relatively small. 

MR. TOTONCHI: Thank you. Justin? 

MR. HAUSCHILD: Yeah, thanks so much, Emil. I 

want to take this opportunity to actually talk a little bit 

about some lies, and I apologize, because I'm gonna zoom back 

from this a little bit. But I think to talk about the lies, that 

should be really the focus of this conversation today. And 

that's the lies of the students, that's the fraud perpetrated on 

students here. So, I'm going to go through a few quick examples 
43 

Negotiated Rulemaking 10/8/2021 

of how veterans have been impacted by falsifications when it 

comes to student loans, and I hope you'll indulge me here. So, 

first Army veteran Travis Craig. Craig’s college required him to 

tell veterans to sign routine paperwork on an electronic 

signature pad, but didn't show them the computer screen, see 

what they were actually signing. In reality, the veterans were 

signing up for student loans, they never wanted and explicitly 

told the institutions that they did not want because they had 

the GI Bill. That's something we've heard already. I think it's 

in the public comments, you'll likely hear more of. Marine Corps 

veteran, Jonathan Nuack, got a refund check from his school. The 

school financial aid officer told him it's extra money he got 

because your account was overpaid. He said, that can't be true, 

the VA paid the right amount. He asked if the financial aid 

officer was sure, it wasn't a loan, because he had told them he 

didn't want any loans. The financial aid officer said, I'm 

positive, it's not a loan, and even told him to use it on things 

like buying a truck. It turns out that he found out he had 

student loans three years later, when the servicer calls them 

started asking them about the loan. And he still thought he 

didn't have loans. And lastly, a college whistleblower actually 

told the veterans organization that he and his financial aid 

colleagues regularly signed veterans up for loans without their 

permission. He said it didn't feel like a forgery, because it 

was all electronic. They said that they would use email 
 

 

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Negotiated Rulemaking 10/8/2021 

accounts, something like first and last name of the student 123 

@gmail.com, sign up for the loans, and then when the education 

department would email that individual, the financial aid 

officer would respond via the fake account. And the student 

would never know that they had the loan, or that it was taken 

out in their name. So, you know, I think the, the main message 

here is that I think we need to keep at the center of this 

conversation, you know, what really underlies the need for this 

relief, and that's falsifications and, you know, functional lies 

that have been that have been told to students. Thank you. 

MR. TOTONCHI: Thank you. At this stage, I'd 

like to ask for a temperature check for tentative agreement on 

this proposed solution, and please, Aaron, if you could stop the 

screen share. Oh, Greg, I see your hand up. Please speak and 

then we'll proceed with the temperature check. 

MR. NORWOOD: It'd be super quick, because I'm 

thinking about dependent students and particularly firstgeneration students as case may be, that may just make a 

mistake. So, I wonder if we could maybe include something about 

intentionality, this intentional, this intent to whatever the 

case may be. Just, just want to bring it up really quickly, 

because mistakes do happen on documents that are insanely 

difficult to read, particularly when you're a first-generation 

student and don't have the support to kind of work through that 

process. 
 

 

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Negotiated Rulemaking 10/8/2021 

MR. TOTONCHI: Thank you, Greg. I believe Jen 

is coming in for student loan borrowers. Is that right? So, 

let's proceed with the temperature check. Again, this is not 

redlined language, it's, it's proposed solution, but it's 

concept. Okay. Can I see thumbs? Jen, oh thank you. Alright. 

Great. Alright. I don't see any thumbs down. Jen -- Jennifer, if 

you could proceed with introducing the next proposed solution. 

Oh, I see Jen has her hand raised, that's, please go ahead, Jen. 

And then we'll tee up the next proposed solution. 

MS. CARDENAS: Yeah, sorry, my computer was 

lagging a little bit. But I want to also support what Greg said, 

I think one thing that people forget is we are a nontraditional, we come from parents who sometimes didn't speak the 

language. So, when we try to fill out these forms at age 18, on 

our own, it's really difficult. And we shouldn't be punished for 

making mistakes. And we don't have ill intentions. We're trying 

to get a higher education; we're filing this we're getting 

ourselves into debt. Because that's the only way we're able to 

create social economic mobility for ourselves. So, I just want 

y'all to like, remember that we, we do this because we need to 

help our community, ourselves, and be able to create, like, 

steps forward for us to continue our education. So, I just 

wanted to say what Greg said, we're first gen, sometimes we 

don't have the support that other people have. And okay, well, 
 

 

 

 

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that's it. 

MR. TOTONCHI: Thanks, Jen. Daniel, we'll hear 

from you. 

MR. BARKOWITZ: Thanks, Jen. And I want to 

echo and agree with what both you and Greg said, so student 

mistakes are different than student intentional fraud. My 

concern, though, is the broad nature of the way the proposal is 

written, that student mistake would be an institutional 

accountability. And that's the piece that I think we need to 

understand and explore. So, I agree that if a student makes a 

mistake, the student should not be held accountable. But 

frankly, neither should the institution, unless there's evidence 

that the institution has intentionally misled or deceived the 

student. So, I think again, it can it can be both. So that's, 

that's, I think, my, my concern, and I would support that, that 

exploration in that language. 

MR. TOTONCHI: Thank you. I see a number of, 

okay, Brian, you have the last word, I do want to move on 

because we have several other proposed solutions we need to get 

to. Brian, proceed. 

MR. SIEGEL: Okay, just, I'll be quick. One, 

to respond to the last few comments, this is regulation is not 

designed to punish students, it's defined to explain situations 

under which a student would get a discharge or cancellation of a 

loan. So, it's not a judgment, it's not intended to be in any 
 

 

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way a judgment on what the student does. In regard to when a 

school is held liable, you know, in order to hold a school 

liable for one of these debts, we have to go through an 

administrative process where we establish a liability and then 

prove that liability before a hearing official. So, we're going 

to have to have a certain amount of evidence in order to show 

that the school is responsible for it. So, it's not just the 

student gets a discharge and the school is automatically liable 

for the amount. 

MR. TOTONCHI: Thank you, Brain. I believe 

Jeri's coming back on behalf of student borrowers, is that 

right? Okay, thank you. If you could note it somewhere, rather 

than just popping in maybe you did. I apologize if I missed it, 

but if you could note it somewhere that'd be helpful for us. 

Thank you. So, Jennifer, you can tee up the next solution I 

believe it's the third one. 

MS. HONG: Great, thanks Emil. I just want to 

circle back to Josh's point about the origination we do have a 

definition of origination and I put the regulatory citation in 

the chat. I will confirm it with some of the words that you've 

suggested. Okay, so, finally, thirdly, rescind the (inaudible) 

provision in the regulations at any borrower who attested to 

having a high school diploma or equivalent does not qualify for 

full certification discharge. And what this will do is it will 

ensure that borrowers can seek a discharge through the false 
 

 

 

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certification regulations if they were coerced or deceived by 

their school and had reported not having a valid high school 

diploma or equivalent. 

MR. TOTONCHI: Questions? Comments? Josh? 

MR. ROVENGER: Yeah, so obviously, I'll be 

contingent on the specific language, but the legal aid community 

is generally in support of rescinding this provision. The 2019 

provision incentivized preparatory schools to defraud both 

students and taxpayers, while denying relief to injured 

borrowers. Typically, students at preparatory schools don't 

prepare their own financial aid applications or documents. And 

instead, recruiters and financial aid representatives fill out 

the documents for students and instruct them to sign. This ends 

up leading students to unknowingly signing documents that 

contain false or inaccurate information, including such an 

attestation. Since most nowadays, since most of the financial 

aid forms were completed electronically, a borrower sometimes 

doesn't even need to be present to review or sign the financial 

aid documents before they're submitted. Under the new rule, we 

think that rescinding this would help, help solve that type of 

falsification. 

MR. TOTONCHI: Thanks, Josh. At this stage, 

I'd like to take a temperature check for a tentative agreement 

on this, the concept of this proposed solution, we could stop 

the screenshare, please. If I could see folks, thumbs. I don't 
 

 

 

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see any thumbs down. Thank you for the feedback. Jennifer, we 

can proceed with the next proposed solution. 

MS. HONG: Okay, this is to specify that the 

Secretary may grant a false certification discharge without an 

application due to falsification of satisfactory academic 

progress for all loans, and this would just provide clarity to 

borrowers and institutions and ensure that all borrowers are 

treated on the same standards. 

MR. TOTONCHI: Thanks, Jennifer. Questions or 

comments? Anything? You know what I'm going to do if there are 

no questions or comments, right? I'd like to take a temperature 

check for a tentative agreement on the concept of this proposed 

solution. I see no thumbs down. Thank you for the feedback. 

Jennifer let's proceed with the next proposed solution. 

MS. HONG: Okay, so this you might have some 

discussion on. This is about including disqualifying status as a 

false certification discharge condition for all loans. Again, 

this would ensure that borrowers applying for discharge are 

treated under the same standards. However, in addition, we would 

like to invite your thoughts on whether to expand the 

disqualifying status provision to include other de facto 

barriers to employment that exists in many fields, but do not 

rise to the level of a state law, state legal requirements such 

as employment restrictions for, for those with a criminal 

record, or requirements for professional license. 
 

 

 

 

 

 

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MR. TOTONCHI: Thank you. Daniel? 

MR. BARKOWITZ: So again, in this particular 

status, I'd be curious to hear a little more about what dates to 

Josh's point is envisioned here is it origination, is it 

disbursement? The particular reason is that a student may 

actually be in one program and choose to switch to a different 

program after the loan is certified or after loans originated. 

And in that situation, the disqualification status may be 

applicable to the program the students switch into, and if the 

school requires that switch. That certainly is not student's 

fault, but the student originates that I'd have concerns about 

requiring that as a condition for, for discharge. 

MR. TOTONCHI: Any reaction to that? Brian, I 

see your, your mic is on. Did you want to comment or is that? 

MR. SIEGEL: No, not. 

MR. TOTONCHI: Okay, Josh proceeds. 

MR. ROVENGER: Yeah, so I think the legal aid 

community is strongly in support of both reinstating the false 

cert. discharge based on ineligible disqualifying status and 

also expanding it to de facto situations. To start, (inaudible) 

department didn't have a sound basis to eliminate the provision 

from the front end. But in terms of expanding, and I mean, as a 

practical matter, there's no difference for a borrower if 

there's a legal prohibition on them entering their field of 

study, or a de facto one. So, there are two specific types of 
 

 

 

 

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Negotiated Rulemaking 10/8/2021 

examples that we routinely see. One is where a student is unable 

to obtain employment because the school lacked the type of 

programmatic accreditation necessary to qualify the student for 

profession -- professional certification, that's actually 

required by most employers. So not a formal state requirement, 

but one, one by employers. And then another area where we see a 

lot of abuse is particular industries where students are unable 

to obtain or maintain employment, because he or she does not 

speak English. So we were interested in seeing what the 

department is thinking in terms of expanding this, but are 

broadly supportive, covering both de jure and de facto 

prohibitions on employment. 

MS. HONG: Josh if you could put those two 

suggestions about programmatic accreditation employment in the 

chat. We appreciate it. 

MR. TOTONCHI: Thank you. Justin? 

MR. HAUSCHILD: Thanks Emil, and I'll be very 

honest, upfront, I'm not entirely sure if this is the 

appropriate place to raise this, nor am I sure there will be a 

more appropriate place to raise it, which is why I'm doing it 

here. I think we would encourage the department to consider 

other potential bases for, for false certification discharge, or 

just to consider broadly, some of these other really inherently 

improper loans that are disbursed. You know, we've got reports 

of veterans experiencing homelessness, that are essentially 
 

 

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forced to take out loans to enroll in an online class when they 

have no shelter, no access to internet, no computer and no 

smartphone. And so, I mean, I think I recognize that this might 

not fit squarely within this particular provision, but really 

just would encourage the department to think more broadly about 

some of these basic unfairnesses that underlie, you know, loan, 

loans. Thank you. 

MR. TOTONCHI: Thank you for your comment, 

Justin. Any other comments or questions? Okay, I will ask for a 

temperature check for a tentative agreement on the concept of 

this proposed solution. May I see thumbs? I do not see any 

thumbs down. And Justin, I assume that's a lingering hand? Okay, 

thank you. Alright, thank you so much. Jennifer, could you 

please introduce the next proposed solution? 

MS. HONG: Yes, this is to require borrowers 

to submit an application within 60 days of their loan being 

placed into forbearance but allow borrowers an additional 30 

days to submit supplemental information. It's really just 

expanding the timeframe by which borrowers can send information 

to support their false certification application. Borrowers may 

request and the Secretary will provide the evidence used by the 

Secretary in making the determination on a discharge explicitly 

state that borrowers could submit additional information to the 

Secretary for reconsideration, if they received a negative 

decision and also to ensure that borrowers are given a chance to 
 

 

 

 

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put the strongest case forward. Borrowers who submit the 

incomplete applications will be given an additional 30 days to 

amend their application and provide supplemental information. If 

the borrower does not amend their application after 30 days, the 

claim will be closed as incomplete, and collection would resume 

on the loan. The borrower would still have the option to 

reapply. Borrowers must also be able to access any of the 

evidence used in determining whether they will receive a 

discharge, for example, information provided by the school to 

help inform any request for reconsideration. This is just to, 

again, make it easier on the borrower and to ensure that they 

have maximum time and flexibility to get the discharge 

application in. 

MR. TOTONCHI: Michaela, I want to recognize 

you coming back to the table for independent students. 

MS. MARTIN: (Inaudible) 60 days, I still 

sometimes am amazed, I'm wondering like why there's so much 

difference. And all the times I know that there's probably 

specific reasons, but 60 days doesn't seem like a whole lot of 

time. 

MS. HONG: They're -- just to respond -- I 

mean, I think that was the most reasonable timeframe that we 

thought we could apply after -- I mean, because the loan’s 

already in forbearance, so we felt it was a reasonable 

timeframe. 
 

 

 

 

 

 

 

 

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MR. TOTONCHI: Thank you, Jeri. 

MS. O’BRYAN-LOSEE: Along the same lines just 

a little bit, 30 days, 30 days after the 60 days or 30 days 

after they're informed plus three days for mail delivery? How is 

-- it's more like how -- the second part of when that 30 days 

starts would be just something to think about. 

MR. TOTONCHI: If you could note that, Jeri, 

please. Josh? 

MR. ROVENGER: Thanks. I think one of us 

big concerns just generally are we've had a difficult time 

getting requested evidence from the department that would be 

necessary to support a borrower's application. And then so 

usually we have to do FOIA request. And that takes obviously, a 

substantial amount of time. And so, as part of this process, the 

question we have is just whether the department would agree to 

provide any requests -- the requested evidence after denial in a 

timely manner. So, for instance, 30 days or so after the 

request. 

MR. TOTONCHI: Josh. Any other comments or 

questions? At this stage -- well, before I ask for a temperature 

check, Jen, is there any other particular feedback you're 

looking for on this one before I take a temperature check? 

MS. HONG: (Shakes head) 

MR. TOTONCHI: Okay. I'll take a temperature 

check for tentative agreement on the concept of this proposed 
 

 

 

 

 

 

 

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solution. Can I see your thumbs please? Okay, thank you. I do 

not see any thumbs down. Excellent. Jennifer -- well, before I 

ask Jennifer to move on, I just want to note we are about 50, 

five zero minutes away from public comments, and I encourage 

public commenters to log in early, okay? Doesn't have to be 

right now. But please log in early. Okay, Jennifer, if you could 

introduce the next proposed solution. 

MS. HONG: Thanks, Emil. This is actually 

removing the requirements of us submit signature specimens. 

Prior for discharge data due to unauthorized loan, unauthorized 

payment or identity theft. We will continue to allow borrowers 

to voluntarily submit signature specimens as evidence if the 

borrower feels the signature specimens strengthen their case, 

but we will remove the requirement that they do. 

MR. TOTONCHI: Any comments or questions? 

Josh. 

MR. ROVENGER: I'm just curious in hearing 

from the department, either kind of what the department is 

thinking or how the department decides ID theft and unauthorized 

loan, false cert applications in cases of electronic 

authorization, just because that is increasingly the norm. And 

so, I would just be interested in hearing from the department, 

how it intends or intends to handle cases such as those. 

MR. TOTONCHI: Jennifer, go ahead. 

MS. HONG: I realize I kind of put it back on 
 

 

 

 

 

 

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this committee a lot of times when you ask these questions, but 

you know, part of this session is to, to hear, you know, if you 

if you all have any ideas that'll help inform what we have going 

into this as, like I said, some of these ideas are less 

developed than others. So, if you have any ideas regarding that, 

we'd love to hear about it. 

MR. TOTONCHI: Justin. Oh, you’re on mute, 

Justin. 

MR. HAUSCHILD: Hey, thanks. I think just 

seconding what Josh has said on electronic signatures, one of 

the examples I gave previously, I think, highlighted how that's 

impacting veterans specifically. And, and, you know, when folks 

can't see what they're signing, it exacerbates it even further, 

right? So, we've got an electronic signature on something that 

people don't -- can't even see what they're signing. And so, 

we're supportive of electronic signatures being addressed as 

well. And, and understand the department is looking for some 

more concrete suggestions there but wanted to voice support for 

that. Thank you. 

MR. TOTONCHI: Thank you for that, Justin. 

John. 

MR. WHITELAW: Yes, I just have a 

clarification sort of question. I understand that I support not 

requiring a signature. But assuming there are certain claims 

where a signature would be helpful, just telling the person that 
 

 

 

 

 

 

 

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they don't have to submit one, but then not telling them that 

well, in your case, we need one, is there a mechanism for the 

department to say, before denying a claim, look, we know we 

don't generally require a signature, but because of the 

particular nature of your -- of the claim in your case, we 

really need to see one. Is that something that would be 

contemplated in the process? Or is it a -- and then if that's 

not there, I think it's a little more complicated than if it 

needs some more information. Because I'm -- it's not clear to me 

that all students will understand when a signature is helpful, 

and when it is not helpful. And I don't -- what I don't want is 

to have claims sort of denied on the grounds of a signature 

wasn't submitted, when in fact, that was because the student 

didn't understand that it would be helpful for their claim. 

MR. SIEGEL: This is Brian, the department 

does that now, in, in cases where there's other evidence that 

could be helpful, we'll say to a student, you know, if you have 

this information, it would be helpful and intends to, you know, 

identify the, the evidence that would be helpful to the student. 

MR. WHITELAW: Perfect. That's, that’s what I 

was hoping you would say. Thank you. 

MR. TOTONCHI: Any other comments or questions 

on this proposed solution? Jen, do you -- are you looking for 

any other particular guidance on this item before we take a 

temperature check? 
 

 

 

 

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check? 

MS. HONG: Well, I think that feedback has 

been helpful thus far. 

MR. TOTONCHI: At this stage, I will take a 

temperature check for tentative agreement on the concept of this 

proposed solution. Oh, can we stop the screen share? Sorry, keep 

your thumbs up. But if we can stop the screen share. Okay, I 

don't see any thumbs down. Daniel, I see you have your hand 

raised. 

MR. BARKOWITZ: Sorry, just a quick return to 

one thing. There's some confusion among my constituent group, 

the 60-day window. I just want to come back to that for one 

second. The concept is that a request for discharge for false 

certification can happen at any point in the loan repayment 

lifetime. Is that correct? That is not limited or proposed to be 

limited. The 60 days is the timeframe from when a borrower first 

reports it to when documents must be submitted. So, there's not 

a limitation to 60 days from origination. It is at any time 

during the lifetime of the loan, that a borrower may initiate a 

request for false loan certification discharge. That's the 

question. If not, we would like to support that that be the 

case. 

MR. SIEGEL: I think the intention here is 

that the borrower notifies us that they believe they meet a 
 

 

 

 

 

 

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qualification for a discharge on these grounds and then have 60 

days to add evidence on that while their loan is in forbearance. 

You don't want to continue forbearance for inevitable, you know, 

to continue on because the borrower is continuing to accrue 

interest. So that's why there's a 60-day limit, then if the 

borrower has provided -- hasn't -- has provided some but not 

enough information, they can get an additional 30 days. That's 

not tied to when the loans disbursed, but when they first inform 

us of the claim. 

MR. BARKOWITZ: But again, Brian, that could 

be at any point in the lifetime of loans. So, let's say, let's 

say, you fraudulently signed up for a loan, and doesn’t discover 

that until the loan is placed into default, the student could 

attest to false certification at that point, even though the 

education may have been over years ago. 

MR. SIEGEL: Yes, that's true. 

MR. BARKOWITZ: Okay, thank you. 

MR. TOTONCHI: Thank you, Brian. Justin. 

MR. HAUSCHILD: Thanks, Emil, I just want to 

take this opportunity to, to inquire the department, you know, 

how much how much latitude it has to consider other parts of 

this process. So, for us, when we're thinking about your 

electronic signatures, one of the things that comes to mind is a 

student really not knowing what they're signing. Of course, 

there's the obvious form of that, where the, when the student 
 

 

 

 

 

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can't see a computer screen, or something of that nature. But 

there -- I think there's also a very much wrapped up in this 

idea of, you know, students not understanding what a Master 

Promissory Note means. And whether or not there might be a 

better term for that, whether, you know, renaming it entirely or 

putting some type of subtitle, you know, or some of these other 

kind of fraudulent tactics that go into the process, the use of 

fake email accounts that the student never -- that the student 

really never has access to, just things not being clear to the 

students in terms of what they're actually signing, and what it 

means for them in the process. So again, the question would be, 

to what extent does the department feel like there's, there's 

latitude or the ability to operate in kind of those, those few 

tangential spaces? 

MR. TOTONCHI: Jennifer, go ahead. 

MS. HONG: Just to your point, Justin, you're 

suggesting, you know, how we can communicate these things more 

broadly. I mean, not just exclusively regarding false 

certification, but generally, you know, how, how the borrower 

can be better informed as it relates to false certification, or 

your statement was more concerning the programs generally. 

Right? 

MR. HAUSCHILD: Perhaps, but I think it's, 

it's also very much related to the borrower being deceived or 

not knowing what they're signing, right? Again, we're talking 
 

 

 

 

 

 

 

 

 

 

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about electronic signature here, or they're being shown 

documents that they -- that, that it's not clear on their face 

what it is, it's easier for an institution to falsely certify a 

loan. So, I guess that's, that's the tie that I'm getting at 

here. 

MR. TOTONCHI: Jaye. 

MS. O’CONNELL: I just wanted to clarify, so 

the statutory language is 685. Just whether this was intended to 

cover FFEL originations from more than a decade ago. 

MS. HONG: Yes, to the question regarding 

applicability for FFEL loans as well. Jaye, is that what you’re 

asking? It applies both to FFEL Direct loan programs. 

MS. O’CONNELL: Okay, so we should expect FFEL 

-- (interposing) 

MS. HONG: Yeah. Yeah, right, right. All -- in 

areas where the regulation proposed regulatory changes apply to 

all, all the programs, all the loans programs, we will provide 

conforming a mandatory language for all those sections as well. 

MR. TOTONCHI: Please correct me if I'm wrong, 

we've taken -- we took a temperature check on this particular 

item. And then we kind of extended the conversation, right? So, 

we don't need to do another one right now. Correct? Okay, thank 

you. So, with that, I'll ask Jennifer to introduce what I 

understand is the final proposed solution and concept on this 

topic. 
 

 

 

 

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MS. HONG: Sure, I’d be happy to. This is the 

last concept that we're trying to address and that is to replace 

the requirement that a borrower provide a judicial determination 

of identity theft with alternative evidence, such as through the 

FTC identity theft affidavit process, filing a police report or 

disputing a loan through all three credit bureaus. The 

department may need to include multiple measures for a borrower 

to fully prove identity theft as one single measure, for 

example, the FTC identity theft affidavit. Right, because it may 

be too weak of a standard to use as a basis for a loan 

discharge, one single measurement, too weak of a standard to use 

as a basis for loan discharge. 

MR. TOTONCHI: Suzanne. 

MS. MARTINDALE: Thank you. I appreciate the 

concept of providing alternative documentation or allowing for 

alternative documentation to prove identity theft. In fact, 

legislation just passed here in California, that now gives 

consumers the right to use the FTC identity theft affidavit in 

response to a debt collector and to compel the debt collector to 

investigate instead of the valid basis for a dispute. It's been 

called to our attention here at DFPI that this is a persistent 

issue, particularly with survivors of intimate partner violence, 

who are frequently the victims of identity theft, and for 

reasons that many folks can probably imagine, do not want to 
 

 

 

 

 

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have to go get a police report, for example. So, I think -- but 

even the FTC identity theft affidavit, it's kind of lengthy. So, 

I would just caution here that multiple measures mean multiple 

hurdles. And so, you know, I would want to have a little more 

discussion on that, but directionally support the concept, 

certainly of replacing the requirement of a judicial 

determination. But making sure that there's some flexibility 

about the kinds of evidence that can be presented, particularly 

because ID theft can happen to just about anybody, but it is 

very, very common in the community of folks who are survivors of 

intimate partner violence, which has been an issue discussed a 

lot here in California. Thank you. 

MR. TOTONCHI: Thank you, Suzanne. Any other 

comments or questions? Jennifer, go ahead. 

MS. HONG: I just I appreciate that comment. 

Suzanne, I think you could tell what we're trying to do here. 

You know, we're trying to balance the, the provision of evidence 

here and we want to be sure that we have multiple measures, but 

we don't want to make it so difficult for borrowers to obtain, 

you know, judicial determination, for example, balance that 

against the fact that we are discharging loans that we may need 

multiple rather than a single standard for loan discharge. Thank 

you for that. 

MR. TOTONCHI: Daniel. 

MR. BARKOWITZ: Jennifer, I just had a 
 

 

 

 

 

 

 

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confirming question on the issues that have been brought to the 

table. It's my understanding, correct me if I'm wrong, but 

these, these proposals would impact all Direct loans, including 

Parent PLUS loans, graduate PLUS loans, etcetera, correct? So, 

where we read borrower, we should understand borrower to mean 

parent borrower in the case of grad PLUS, graduate student 

borrower as well? 

MS. HONG: Yes, the answer to that is yes. I'm 

going to have Brian correct me if I'm wrong. 

MR. SIEGEL: No, that's correct. The false 

certification discharge is available to all Direct loan 

borrowers, assuming they meet the standards. 

MR. BARKOWITZ: And so again, just to be 

clear, if a Parent PLUS loan under this proposal then could be 

discharged, if a student satisfactory (inaudible) progress is 

falsified by the institution. So, the proposals brought to the 

table when they speak to student records apply equally to all 

loans under those conditions, not simply the student loan. And I 

would argue in favor of that. I just wanted to confirm that that 

is the intention of the department. 

MS. HONG: That is correct. 

MR. BARKOWITZ: Okay. Thank you for clarifying 

that. I appreciate it. Thanks. 

MR. TOTONCHI: Josh. 

MR. ROVENGER: Thanks. So just in response to 
 

 

 

 

 

 

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the point made by the department that there might need to be 

additional forms of evidence, it seems like what they -- I may 

be reading this incorrectly -- that the department is suggesting 

a nonexhaust -- exhaustive list. And to the extent that's not 

the case, we would urge first, the department to do so if it 

ultimately concludes that it needs multiple forms of evidence 

on this. 

MR. SIEGEL: (Inaudible) responding, when we 

looked into this, it didn't appear that there was any common --

commonly accepted forms of evidence that would -- that everybody 

accepted would reach a standard of proving identity theft. So, 

you know, we're looking for ideas from, from you all and from 

state AGs in particular and others who have dealt with this in 

other context as for what evidence is available, what evidence 

is shown to be accurate? And what should we be looking for? So, 

we're looking for a lot of suggestions in this area. 

MR. TOTONCHI: Josh. Josh, you’re on mute. 

MR. ROVENGER: Oh, sorry about that. Brian, 

thank you for that. I appreciate that. And I mean, one quick one 

that comes to mind that I don't think is on this list is just an 

affidavit from the individuals sworn under oath saying that they 

never signed any -- signed the loan. I mean, that in 

conjunction, for instance of filing a police report would be 

multiple forms of evidence, at least in my mind should be 

sufficient. 
 

 

 

 

 

 

 

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MR. TOTONCHI: Any other comments or 

questions? 

MS. HONG: (Inaudible) Anymore thoughts that 

folks have on ID theft? Anybody has anymore thoughts on other 

examples to add to that non exhaustive list that Josh already 

added to? 

MR. TOTONCHI: Anything else the department 

needs in terms of feedback? I know we didn't get any feedback on 

that item. But anything else on this particular proposed 

solution before I take a temperature check? 

MS. HONG: I guess not, not unless anybody has 

anything that they want to add? Those are the issues that we 

have on the table for false certs. So, when we go back and bring 

back proposed regulatory language, I'm sure we’ll get a big 

thumbs up from you guys. 

MR. ROVENGER: So, there are three additional 

issues related to false cert that I wanted to just raise and my 

understanding, like, I know I’m going to be sitting around a lot 

and writing. And I'm happy to do the same on these three to tee 

up a broader conversation. But the first is it's our 

understanding that there’s subregulatory action and as required 

corroborating evidence in the ATB context. And so, the first 

thing we want to see is a removal of that corroborating evidence 

standard with respect to that process. The second thing we want 

to discuss and propose is, we think there should be a process 
 

 

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through which discharges can be requested in the false 

certification context. The department has existing authority 

already -- I mean subregulatorily -- to do this and has done so 

in the past. And we think amending the regulations to identify 

the instances in which the department must provide for group 

discharges and would be a step in the right direction. 

Particularly for borrowers who attended the same school who 

attest to similar, for instance, ATB testing violations in which 

there is common evidence that can allow for accurate discharge. 

And then the final proposal that we'd like to discuss at some 

point is thinking more broadly about what it actually means to 

have a false certification. Now, right now, ED has focused on 

falsely certifying the student's eligibility to borrow but under 

the statute, our reading of it, it would also constitute a false 

certification when institution falsely certifies their 

institutional or programmatic eligibility to participate in the 

student loan program. And in instances like those, we think 

false certification should also be an option. So again, happy, 

happy to put all that in writing. But did want to raise 

(inaudible) the flag. 

MR. TOTONCHI: Thank you, Josh. Any final 

comments or questions on this before a temperature check? 

Okay, then I'll ask for a temperature check for tentative 

agreement on the concept of this proposed solution. Okay, I 

don't see any thumbs down. Thank you so much for the feedback. 
 

 

 

 

 

 

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So, first of all, I want to note that we are at the final -- we 

just finished the final point of the false certification 

section. Okay. So, bravo, to the committee. A few things that I 

want to mention first, again, we're just under 30 minutes until 

the public comments period. Okay, please, if you are going to be 

making a public comment, please log in early, so we make sure 

that you get to do your comments. Okay? Now, before obviously, 

we have -- before we move to the public comment, we kind of want 

to wrap up, you know, so if there are any final substantive 

thoughts on all of the topics that we've talked about this week, 

we have some time. So, what I'm going to do is think back where 

we started on Monday, okay, and I'm going to go, to the extent 

we have time to do this -- I'm going to go issue by issue, and 

just ask for final feedback on that. Okay? So, as you as you 

recall, so think about all the work that we've done, if there 

are additional final thoughts you have on any of the points we 

have left, please raise them. Okay? So, as you recall, the first 

issue that we discussed was total and permanent disability 

discharge. So first I’ll ask the Department of Ed. Jennifer, 

specifically, do you have what you need on this, in order to 

know work on work on this matter between sessions? Or do you 

need anything else? 

MS. HONG: We do. That was a fruitful 

discussion, and we'll go back and discuss that internally. 

MR. TOTONCHI: Okay, thank you. Any additional 
 

 

 

 

 

 

 

 

 

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comments, final thoughts on this issue from the committee? John. 

MR. WHITELAW: Just briefly wanted to let the 

department now, we will almost certainly be sending you some 

things between -- in a -- sufficiently in time for you to 

consider them before the next meeting, in terms of suggestions. 

We did -- talked (inaudible) and I think we have some ideas 

about additional categories to the ones that were listed in the 

original proposal, we will be sure to put those to writing to 

make sure that you have -- and we may -- they were probably 

mentioned briefly in the comments, but we'll, we'll put that to 

writing also. 

MR. TOTONCHI: Thank you, John. Persis. 

MS. YU: I just wanted to mention that I think 

it's critically important that we expand the categories to look 

at anyone who has been disabled for 16 months, and that that's a 

critical piece to include, and certainly support the disability 

negotiators proposals, and the constant refrain of automation as 

much as possible and looking at as many sources to do such 

automation as possible. Thank you. 

MR. TOTONCHI: Thank you so much. Moving on to 

the next issue. It was issue number two, closed school 

discharge. First, I’ll ask the department. Go ahead, you've 

raised your hand, Jennifer. 

MS. HONG: You were just going to come to me 

anyway. Yeah, I just want to emphasize because I realized that 
 

 

 

 

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this discussion for closed school, you know, kind of was 

confusing for folks and we veered in all different directions. 

If I could just say generally, as simply as possible this --

that the department proposed language in support of making this 

close discharge process easier, and to uphold what we -- our 

interpretation of the statute to support reenrollment of 

students and balance -- balancing that against the fact that we 

do want to be able to get -- provide these discharges for 

students and borrowers, even if they try out and teach out and 

find that it doesn't work for them, they can still get their 

closed school discharge. So, it's really a much more generous, 

proposed language than there ever has been. And we have to 

retain again, I don't know if I made this point clear, when your 

window -- we're changing that from three years to one year, in 

light of the fact that we want to keep these borrowers out of 

default. And I just want to emphasize all this is very 

supportive of the borrower. And, and to find a way to streamline 

the process and automate, automate this process within, within a 

year for borrowers that want to avail themselves of the 

discharge, but they can still apply and get the discharge if 

they want as well. 

MR. TOTONCHI: Thank you, Jennifer. Josh. 

MR. ROVENGER: Yeah, the one the one point 

I'll hit on closed school discharge is anyone who attended the 

school that closed pre-2014, irrespective of whether there's --
 

 

 

 

 

 

 

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whether they entered another program should have, have a 

discharge at this program and that requirement should be, it is 

likely to be more broadly eliminated, certainly limited to a 

group who has been waiting the longest and are least likely to 

know of their right to (inaudible) this relief. 

MR. TOTONCHI: Jessica. 

MS. BARRY: Yeah, I just want to say that we'd 

like to circulate some proposed definition of “school” for the 

closed school discharge. So, we'll be working on that, we’ll 

circulate that shortly. 

MR. TOTONCHI: Thank you. All right. Issue 

number three, eliminate interest capitalization for nonstatutory capitalization events. I’ll ask the department; does 

it have what it needs at this stage to work in advance of the 

November session? 

MS. HONG: I think we got what we need on this 

one. 

MR. TOTONCHI: Any final thoughts? Go ahead, 

Jaye. 

MS. O’CONNELL: Thank you. So, I know we're 

still waiting for the some understanding regarding the FFEL 

implications. But as I was -- as we were getting the tutorial 

today, on the IBR payments, I was just thinking of the value of 

having some information from Raj around the effects of interest 

capitalization, you know, in some of the scenarios that we're 
 

 

 

 

 

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talking about, and it I know, this was our learning and 

listening session, but I think that could be just helpful. 

There's the perspective that we always had in -- as we've 

serviced FFEL loans is that when you cap interest, there's, 

there's that implication of the added costs. When you don't cap 

interest, there are large pools of interest that remain 

outstanding, so then borrowers aren't seeing their balances 

decline. And it was always the -- there was sort of always the 

opposite group of people came out in opposition to whatever we 

had happened to do. So, I just think there's some education 

piece around not capping that, you know, it's not going to look 

like people think it should, because as the payments are being 

made, if there are pools of interest, the loan balance doesn't 

go down. So, I don't know if there's any opportunity for Raj to, 

to educate a little on, on the effects. 

MR. TOTONCHI: Thank you. Go ahead, Raj. 

MR. DAROLIA: (Inaudible)I’m happy to do that 

(inaudible) next session. Do you mind just reading that in a 

little more detail? I was taking notes, but just kind of 

specific requests in the chat or (inaudible)? 

MR. TOTONCHI: I just want to recognize; 

Persis and Josh will probably be rotating in and out topic by 

topic on this one. Persis, go ahead. 

MS. YU: Thank you, and apologies for making 

your screens flash around. But this is where I think, you know, 
 

 

 

 

 

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these topics are really interrelated. So sometimes this topicby-topic format is a little complicated, but I -- in the 

elimination of interest capitalization, there are some 

deferments in which the statutes dictate the capitalization. And 

so, I would encourage the department to think creatively as it's 

drafting the IDR language to think about whether or not we could 

simulate those deferments to provide those opportunities under 

the ICR statute. And then thus eliminating the capitalization in 

that format. 

MR. TOTONCHI: Thank you, Persis. Issue four, 

and I know I'm going a little bit out of order from what we did 

this week, but I'm just going in the order of the number of 

issues. Issue number four, improving the Public Service Loan 

Forgiveness application process. Jen, does the department have 

what it needs in order to work on this prior to the November 

session? 

MS. HONG: Yeah, I think so. I know there were 

a lot of questions still regarding a -- you know, the temporary 

waiver that we just provided and what we're proposing, we could 

provide a document like a side by side for, for you all, to have 

just to see what the, what the executive actions are, and how 

they might relate to what we're proposing for the table as well. 

If that would be -- if that would be helpful. 

MR. TOTONCHI: Alyssa. I’m recognizing you for 

coming to the table. I'm going to do that less during this final 
 

 

 

 

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segment. Alyssa, please proceed. Oh, you’re on mute, Alysa. 

MS. DOBSON: Of course, I am. First, I’ll 

apologize, my kids just got home. And so that means that they 

need to eat everything in the house. So, if you hear loud 

noises, or folks running around, I apologize. I just thought it 

was really important. I do think we need a two-tier structure 

for a pathway to forgiveness, I think, you know, retaining the 

one that we have, that everybody's familiar with it, it's a good 

program. But every occupation does have a stock code. And while 

that might sound like a foreign concept, it's not foreign to ED, 

I think it would be pretty easy to maintain a list of qualifying 

occupations. And then you could very simply add a section on the 

form for the employer to approve or certify that standard 

occupation code. And then it would alleviate the burden to try 

to somehow qualify private for-profit employers, and 

additionally open it up to folks whose private employer couldn't 

qualify under whatever we may come up with to do that. But we're 

still doing work that, that fell into the category of public 

service work. 

MR. TOTONCHI: Thank you. Dixie. 

MS. SAMANIEGO: Yeah, so I also really want to 

reemphasize a point that I made earlier during the week that --

and I've asked Raj into the chat, right. And during that 

session, or that day to really add into the workload, that 

adjuncts and guest lecturers take on specifically with travel 
 

 

 

 

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times that -- I know the adjuncts on my campus, they travel a 

lot like, one of my professors has teaches at four campuses. And 

so that's a lot of workload. And then also, Daniel made a point, 

and I really want to reiterate it, also, including in-office 

hours, because that is a part of the workload. So, I really want 

to reiterate that into, you know, into the discussion, so that 

adjuncts can also be included. 

MR. TOTONCHI: Thanks, Dixie. Jeri. 

MS. O’BRYAN-LOSEE: I'm going to do a plus one 

on Dixie, because that's initially what I was going to say. So, 

the other point I want to make is, as we're thinking about all 

this language, I'd like to just plant the seed of who's going to 

read the language, who's going to be expected to understand the 

language as we move forward. Because you know, students aren't 

going to be able to necessarily understand kind of what's going 

on, on the whole. So, I just want to plant that as a reminder 

for people who actually may need to be understanding the work we 

do. And just because time was ticking away, I wanted to add that 

as 

well. 

MR. TOTONCHI: Thanks, Jeri. I just want to 

note, there are a lot of good final comments and questions 

coming into the chat. Please continue to do that. Marjorie. 

DR. DORIME-WILLIAMS: Again, of course, plus 

one on what everyone said so far, and I just wanted to ask the 
 

 

 

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department, I know that sort of right now under the emergency, 

sort of temporary statutes, there will be review of those that 

were denied. And then in the current document that reviewed 

there was conversation about reconsideration. And so, if there 

could just be some clarity about where the department's going to 

be, I guess actively reviewing cases and if there's a cut off, 

so maybe if your loans were from the State or, or whenever 

that's happened to make clear for folks who might need to 

actively sort of ask for that reconsideration or actively 

reapply versus those who already denied but the department might 

be looking at it. So, I think that was something that wasn't 

really clear in the document or in our discussion. 

MS. HONG: I’ll just reiterate what --

(interposing) Sorry, I just -- didn't mean to jump in here. I 

just wanted to reiterate what Ian Foss had said, and that is FSA 

is actively reviewing those inquiries. So, so yes. And yes. The 

proposal to put to codifying the regulations is just so we have 

it there. We have a process codified but that is happening as we 

speak. 

MR. TOTONCHI: Thank you. Issue number five. 

Does the department have what it needs to work on this before 

the November session? 

MS. HONG: I think so, I think that was the 

more challenging of the discussions. So, I mean, we're always 

open to feedback on that piece. 
 

 

 

 

 

 

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MR. TOTONCHI: And for everyone's edification, 

I'm referring to PSLF employer eligibility and full-time 

employment. Okay? Any final thoughts from the Committee on this? 

Okay. I'm gonna ask for -- we’re going to do issue 6, 7, and 8 

together, okay? Issue six is borrower defense to repayment 

adjudication process. Issue number seven is BD to repayment post 

adjudication. And number eight, is borrower defense to repayment 

recovery from institutions. Okay? So, we're essentially going to 

talk about borrower defense together. Initially, Jennifer, any -

- does the department have what it needs to work on this prior 

to the November session? 

MS. HONG: Yeah, I believe so. Happy to hear 

any closing remarks on it. 

MR. TOTONCHI: Yes, Daniel, saying your final 

thoughts. 

MR. BARKOWITZ: So again, to do -- these are 

tied together -- very happy to support the extension to the 

lifetime of the loan for students to submit their request for 

borrower defense to repayment, very concerned about the six-year 

limitation period and the lack of definition of when that 

limitation begins, specifically for institutions that may no 

longer have records to support in the case of institutional 

liability. So, I just want to again, highlight that those two 

issues can't be seen separately. They, they tie very 

deliberately together. 
 

 

 

 

 

 

 

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MR. TOTONCHI: Thank you. Jessica. 

MS. BARRY: Yeah, I just want to let you guys 

know, Carol and I are planning to work on a definition of 

aggressive recruiting. So, if anybody wants to work with us on 

that, we would love to get your feedback, just reach out to one 

of us. 

MR. TOTONCHI: Thanks, Jessica. Michaela? 

MS. MARTIN: Yeah, I understand that these are 

all like similar. But I do find them to be different. So, I find 

it interesting that we are lumping them all together right now 

for feedback. But I would say that there's been some like, 

expressed concern about, you know, mass discharges, or again 

about student fraud. And I want to just ring that bell again, 

that when we're making policies here. I really encourage us not 

to focus on like this fear of theoretical fraud and we allow 

like the department or the government to protect their assets, 

and then in this space, we consider how we're benefiting 

students and be very student focused here. 

MR. TOTONCHI: Thank you, Michaela. Josh. 

MR. ROVENGER: Thanks. I think my closing take 

on BD for the week is that the department should not be 

compounding the harm that students have already suffered. And 

that specifically means including a time limit, a very defined 

time limit, by which it has to define BD -- by which it has to 

decide BD claims, it fails to do so, it should grant the 
 

 

 

 

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borrower defense and that relief should be retroactive for the 

people who have been waiting for five years to have a decision. 

Thank you. 

MR. TOTONCHI: Thanks, Josh. Heather. 

MS. PERFETTI: Thank you. So, I think this is 

where the theme of communication -- improved communication among 

the regulatory triad surfaced. And so, I would simply put a plug 

in. I know it was a theme in some other areas that we discussed 

as well. But I would like to see some specific requirements 

about those communication protocols to ensure that we all have 

the information relating to the claims that the department is 

considering and processing and especially when an institution 

may be in violation of an accreditor standards to ensure that 

the accreditor understands where that has happened and where 

there may be trends across an institution. Thank you. 

MR. TOTONCHI: Thank you. Eric. 

MR. APAR: Thank you. So, I just want to 

reiterate for the reconsideration process on issue paper number 

seven, the department should be adjudicating reconsideration 

claims under both the federal and the state standard in the 

first instance, rather than requiring students to apply under 

the federal standard, get rejected, and then ask for 

reconsideration on the state standard. I think state AGs just 

think that imposes an unreasonable burden on the student. And if 

the department is concerned about adjudicating claims under 
 

 

 

 

 

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state standard, they can always adjudicate the claim under the 

federal standard in the first instance, if the claim succeeds, 

there would be no reason to adjudicate it on the state standard. 

If the claim fails, then the department would have to adjudicate 

it under the state standard, but they're already providing for 

that possibility in the event of a reconsideration request. So, 

I just wanted to reiterate that point on behalf of state AGs. 

Thank you. 

MR. TOTONCHI: Thank you. Okay. Issue number 

nine, predispute arbitration. Jennifer, does the department have 

what it needs to work on this prior to the November session? And 

you know, while, while I do that, I'll, you know, ask about 

issues 10, 11, and 12, we'll do this collectively. Issue 10, 

creating a new income-driven, income-driven repayment plan, 

issue number 11, false certification discharge, issue 12, Pell 

Grant eligibility for prison education programs. I realize we 

just talked about few of these things today. But I'll ask the 

same questions. Jennifer, does the department have what it needs 

to work on these topics prior to the November session? 

MS. HONG: Yes, I think we have something to 

start with here. 

MR. TOTONCHI: Any final thoughts about these 

four topics, issues 9 through 12? Persis? 

MS. YU: Thank you. Yeah, so I had a number of 

thoughts about the income driven repayment. One of the things 
 

 

 

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that we did not have quite as robust of a conversation around 

for IDR as we had for PSLF is what counts as a qualifying 

payment. And so, I wanted to also flag that a lot of the topics 

that we discussed during Public Service Loan Forgiveness also 

apply to the income driven repayment context, such as the 

counting deferments and forbearance times, the issue of 

restarting the clock, when a borrower consolidates and making 

sure that we count all of the payments that were made prior to 

consolidation. And, you know, and finally, like, well, not 

finally, sorry -- and also that we are being as expansive as we 

possibly can to ensure that we're covering Parent PLUS 

borrowers, and FFEL borrowers wherever possible. And then 

finally, reminding us that I'm excited that to try to figure out 

how to best protect defaulted borrowers through this process as 

well. And I still encourage everybody to email me if you would 

like to be included in that offline conversation. Thank you. 

MR. TOTONCHI: Thank you. Dr. McTier. 

DR. McTIER: Yes, I just want to reiterate 

some points that were made earlier regarding the Pell 

eligibility for students who are incarcerated. Piggybacking off 

of my colleague, Dr. Stan Andrisse, making sure that the 

language is people-centered, student-centered, ensuring that we 

make the process as easy as possible for those who are 

incarcerated. Taking into account the difficulty of accessing 

documents, we just want to make sure that those things are 
 

 

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specified and outlined. And again, we look forward to diving 

deeper in the subcommittee. 

MR. TOTONCHI: Thank you, everyone. Well, with 

that, folks, we are just about five minutes away from public 

comments, I'd like to ask Jennifer, if she has any final remarks 

for the week. 

MS. HONG: I do have some final remarks 

quickly. I just want to thank each and every one of these 

committee members for your service. We've really appreciated the 

thoughtful deliberation at the table and at times lively. I 

anticipate they'll be lively moments (audio) and we just will --

we realized this is a devotion of your time and we thank you for 

your service to talk about these very important issues for 

students and borrowers. So, thank you. I also want to 

acknowledge you know, in a live session, we have two rows of 

seats set aside for department staff and see them furiously 

writing taking notes running up to the table, drafting regs as 

we talk. That's all happening right now, you just don't see 

them. And the -- you know, once we (audio) making, you know the 

department has a flurry of activity. It is a massive 

coordination effort among all the offices as well as interagency 

and I believe Undersecretary Kvaal alluded to that effort. And I 

just want to just give a high five to the staff for bringing us 

to this point. We'll continue to keep forging ahead. Also, the 

public has engaged with this process. The fact that it's been 
 

 

 

 

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virtual has allowed them to engage in unprecedented numbers, we 

really appreciate the feedback. We loved hearing from you, both 

orally and your written comments. We're about to hear from you 

now. Thank you very much. And I don't want to forget that IT --

as far as staff, the IT guys that kept us going through this 

whole week. So, thank you. And also, finally, our very competent 

facilitators, thank you for your service as well and helping to 

keep this conversation going. 

MR. TOTONCHI: Thank you, Jennifer. And thank 

you for that. So just a few -- we are a few minutes away from 

public comments. A few closing things to discuss, we've talked 

about this at length but remember, we have a subcommittee 

meeting on October 18th, 19th, and 20th. Committee members who 

are not members of that subcommittee, you may register, just 

like the, the -- via the public registration, to pay attend --

to be in on those meetings or to view them. Okay? Another thing 

I want to raise is that at FMCS, we take pride in when we get 

involved in negotiation, and being as helpful as possible to the 

parties, that's not only when we are present here with you at a 

scheduled meeting, but also between sessions. Okay, so please 

let -- please reach out. You have our contact information, all 

four of us, what was given to you in the initial outreach letter 

that I believe Kayla sent out. Please do not hesitate to reach 

out to us if we can be of assistance between sessions. Okay? In 

addition to that, we are able to receive data requests, 
 

 

 

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documents, and answer any other questions, provide answers 

in the interim. Okay? Please keep an eye out for five new links 

-- Zoom links that you'll be receiving in your inboxes for 

session two, November 1, 2, 3, 4, and 5 will each have their own 

unique invitation -- unique link, we won't be using one link for 

all of them just like we did here. Okay? I do want to note that 

additional documents shared out by the department will be posted 

on the website. So just in case you think you may have missed 

something via email, or something along those lines, there could 

be issues, new issue papers or regulatory text or other items, 

please check that website for the new information. Okay? So, I 

understand the link for this website is in the chat. So please 

copy that for your, for your reference. Okay? With that, we're 

just about ready for public comments. I want to thank the 

committee, the advisors, everyone, the primaries, the 

alternates, the FMCS team, the Department of Education team, and 

all the other teams that are working behind the scenes in the 

background, for all of your hard work, and excellent robust 

discussion this week. On behalf of FMCS, we certainly look 

forward to the discussion in November and, and look forward to 

taking public comments now. So, who is our first public 

commenter? 

MR. ROBERTS: I'm letting him in right now. It 

is Blake Baron representing himself. 

MR. TOTONCHI: Mr. Baron, if you are here, I 
 

 

 

 

 

 

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don't see you. 

MR. BARON: Yes, actually. 

MR. TOTONCHI: Hi, how are you? Are you able 

to turn on your camera? If not, it’s fine. 

MR. BARON: I am, yeah, I'm just not as a 

finely dressed as everyone. 

MR. TOTONCHI: That's okay. No problem, 

proceed. You have three minutes. 

MR. BARON: All right. So yeah, as mentioned, 

my name is Blake Baron and I ended up in a massive amount of 

debt after being taken advantage of by a for profit college when 

I simply wanted to improve my quality of life. The worst part is 

that in wrapping up $30,000 in student debt, I've never even 

obtained a degree because the school didn't let me know that the 

program that I was enrolled in was over $90,000 until I'd 

already invested a year and a half of my time in that program. 

So, I can confidently say that I barely learned anything while 

in the program for multiple reasons. Sleep deprivation, 

demanding work schedule, the unwillingness of the faculty to 

alter my schedule in a way that would best suit me despite the 

program being online and having to spend hours at a time on the 

phone feebly arguing with the financial aid department among 

other reasons. Once -- oh, excuse me, sorry, once I was no 

longer on the program, I was forced to deal with that large 

amount of debt that I couldn't afford. My own brother cut ties 
 

 

 

 

 

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with me because he thought I was a complete loser. I couldn't 

afford a car for the longest time because of the way my credit 

suffered, which makes life almost impossible on the west coast. 

My mother also had to help me out with rent on multiple 

locations, which was a struggle for her, she's on a fixed 

income. And I worked 14-hour days trying to make ends meet. And 

for a while I was up to my eyeballs in payday loan debt as well, 

because I simply was not able to make enough money to pay these 

payday loans down and afford my basic bills. I was considered an 

unskilled worker, you know. So it is in my, my hope that my 

story the other stories that you hear, you know, from people 

that have experienced something similar that it'll inspire the 

creation of a program that will allow someone who has been taken 

advantage of by these for profit colleges, some recourse to be 

excused from these student loans, particularly if they're not 

seeing any improvement in their overall quality of life as a 

result of the debt that they owe. Thank you. 

MR. TOTONCHI: Thank you. Thank you for your 

comment, Mr. Baron. I believe our next commenter is Jason Porta, 

representing himself. Jason, are you in the room? Oh, it looks 

like you're in the room. He’s connecting to audio. I know he 

can't hear me yet, that’s why I’m not speaking. There he is. 

Hello, Mr. Porta, can you hear me? Can you please unmute 

yourself? 

MR. PORTA: There. 
 

 

 

 

 

 

 

 

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MR. TOTONCHI: Mr. Porta, welcome. You have 

three minutes to make a public comment. 

MR. PORTA: First of all, I didn't even 

realize that for the 10 years, it had to be 120 monthly 

payments. My -- to give you an example of what my system was --

it’s literally showing zero because I was paying payments 

(audio) in bulk instead of paying on a monthly basis. So, I'm 

not even sure how well this will impact me. So that's, that's 

the type of thing I faced. And when I went to my senator for 

help, they were like you didn't condense to the right loan. You 

didn't condense it at its correct loan until 2016, so you're, so 

you're not going to be eligible for five more years. So that's 

pretty much what my experience was. Thank you. 

MR. TOTONCHI: Thank you so much for your 

comment, Mr. Porta. Our next public commenter is -- and I 

apologize if I mispronounce this, Chalis Montgomery representing 

herself. Can you hear me? You have three minutes to make your 

comment. 

MS. MONTGOMERY: Thank you. Good afternoon. My 

name is Chalis Montgomery, and I am the mother of a child with a 

disability and I hold student debt. I've come today to respond 

specifically to the memo regarding income-driven, income-driven 

repayment. And under the heading marked solutions, point seven, 

which asks, what design factors and changes can better support 

borrowers? We can't ignore the fact that the economy is an 
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Negotiated Rulemaking 10/8/2021 

ecosystem, one that relies on predictable outcomes for steady 

progress. However, parents like myself and caregivers of the 

disabled, and chronically ill are not afforded the luxury of 

that stability. While it is admirable and long overdue that 

those borrowers who face total disability may have their loans 

discharged, families who bear the responsibility for their care 

often make hard choices in order to balance their lives and 

their budgets. Caregivers frequently must choose employment that 

is part-time and lower pay in order to adjust care schedules, 

even families caring for those who are not fully disabled, but 

instead are chronically ill face the constant specter of a large 

medical bill that fully depletes discretionary income. If, for 

example, my discretionary income is $500 per month, and I 

receive a medical bill for $1500, my negative balance is of 

course, $1,000. So, I asked the committee, what part of my 

negative balance would you like in a monthly payment? Because it 

is very difficult for families like mine to anticipate these 

costs, even the suggestion of a reduction to 5% of expendable 

income seems unrealistic, especially when groceries are not 

purchased on a percentage and are going up. Housing is not 

purchased on a percentage and is going up and transportation is 

the same. So, I would ask the committee to consider a permanent 

rate of 0% for families with children on a 504 or IEP, or who 

are caring for disabled adults. My daughter spent the pandemic 

hearing about the elderly and immunocompromised, and how they 
 

 

 

 

 

 

 

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were at risk. And she watched as the world wrestled with a 

return to normalcy, that for her seems impossibly far away. She 

told me that she thinks the government does not care about her 

because she has a disability. 

MR. TOTONCHI: 30 seconds. 

MS. MONTGOMERY: Caring for families like mine 

by revising the income-driven payment plans appropriately would 

be a great start. I yield the balance of my time. 

MR. TOTONCHI: Thank you, Ms. Montgomery, for 

your comments. Our next public commenter is Lauren Marquardt 

(phonetic) representing herself. Ms. Marquardt, if you can hear 

me? 

MS. MARQUARDT: I can hear you. 

MR. TOTONCHI: Excellent. If you, if you'd 

like to turn on your camera please, please do so. Excellent. 

Welcome, you have three minutes to make your public comments. 

MS. MARQUARDT: Hi, so I was asked by other 

classmates to come on here and speak on behalf of our experience 

with this process to say it hasn't been dramatic would -- you 

know, wouldn't be giving it justice. It's, it's something that 

is painful to go over to work through with not only my loans but 

my Parent PLUS loan which exceeds you know, near $300,000. I 

went to Brooks Institute and got a degree in professional 

photography. By show of hands, who has a smartphone with a 

camera? We all do, so you all are my competitors in the 
 

 

 

 

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industry. You know, I wouldn't have gone to a school knowing 

where the digital photography age would take us, not that we 

knew that, you know and we can't predict those things, but I'm 

sitting with debt where I should be a doctor and I can -- sorry 

barely pay my bills in the career that I chose so you know I 

think that I -- my whole expectation of what I would get from a 

college experience is something that I will you know always see 

as a lie and I feel like I am a big victim of false 

advertisement and I know a lot of us are in the same boat but 

you know, I just want you guys to know that what you're doing is 

important and I hope you take into consideration all of us that 

have been -- you know our lives are completely affected by this 

forever I mean I probably will never pay off my loan and I’ll 

see the death of my father before I get any kind of relief from 

a monthly payment and, you know, I live in a vehicle. Like I, I 

don't go -- you know I don't pursue another degree because none 

of my tr --- my credits will transfer. So, I've have, I have a 

degree but I can't go and become anything bigger than what I 

already am without taking out more debt and have no credits to 

transfer. Yeah, it's -- it sucks. You know, I work hard every 

day to just to get by and I live a simple life. And I don't ask 

for much. I just -- you know --

MR. TOTONCHI: 30 seconds. 

MS. MARQUARDT: (interposing) -- my family and 

my relationship with my family truly sucks. Thank you for your 
 

 

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time and I hope you guys are able to help us out. 

MR. TOTONCHI: Thank you for your comment Ms. 

Marquardt. Okay. Our next commenter is Aaron Shenck, who's the 

executive director of MAACS. Mr. Shenck, if you could unmute 

yourself. You have three minutes. 

MR. SHENCK: Thank you very much. My name is 

Aaron Shenck. I'm the director of Mid-Atlantic Association of 

Career Schools, which is a regional association that works with 

approximately 100 technical colleges and trade schools in 

several states. I believe it is important to note to this 

discussion that our association includes both nonprofit 

institutions and for-profit institutions. Let me start by saying 

I've seen some of the other public comments, some of which have 

been from borrowers who attended trade schools similar to those 

whom I work with. I trust the sincerity of their stories, and 

I'm sorry to hear those were their experiences. However, I can 

say their stories are not the majority experience of students at 

most trade schools. I've personally visited approximately 120 

different career schools in several states, and met with 

literally 1000s of students, family members, veterans’ groups, 

employers and other stakeholders at these schools. The things 

that I've seen or heard with my own eyes and ears have been 

overwhelmingly positive. These schools serve a vast majority of 

students extremely well and are critical to our country's 

workforce and the economy. My main reason for speaking today is 
 

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-- was a comment specifically on a couple pieces of the BDR 

proposal. Speaking to countless administrators of both nonprofit 

and for-profit institutions across the country, the general view 

is the 2016 BDR role tipped the scales of justice in the claims 

process too far against the institutions. I think it's safe to 

say that the consumer groups believe the 2019 BDR role does the 

opposite by tipping the scale too far against the borrowers. The 

committee’s job is to find that right balance. Stated plainly, 

this means creating a process that favors neither students nor 

institutions but gives both parties a fair and equal opportunity 

to be heard, and is designed to be administered fairly from one 

federal administration to the next. Here are my five main 

suggestions to further improve this process. Number one, the 

adjudication timeline. Overall, the timelines for response for 

schools and students in the proposed rule, I believe, seem to be 

pretty reasonable and fair. My only request would be that there 

should be some sort of waiver or other option for exceptional 

circumstances that may require additional time. Number two, the 

categories of BDR claims. There is an addition of a new category 

referred to as aggressive recruiting as a cause for claims. All 

sectors of higher education engage in recruiting. However, it 

needs to be defined and is a little unclear from what my 

understanding so far, so I have requested you define in detail 

what is considered aggressive recruiting so institutions know 

for certain what they can and cannot do. Number three, group 
 

 

 

 

 

 

 

 

 

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claims. I believe group claims should not be the default option. 

Several negotiators contested this recommendation a couple days 

ago --

MR. TOTONCHI: 30 seconds. 

MR. SHENCK: -- and the main reason was they 

believe that you know, essentially that this should help as many 

borrowers as possible. I’d like to see, you know, group plans 

not be the default option. Number four, the timeframe to submit 

claims. I believe it's critical that the window not be 

(inaudible) schools to basically defend themselves for things 

that happened 15, 20 years ago. And final thing is program 

review determinations. I believe that schools should have the 

ability to --

MR. TOTONCHI: Time’s up, sorry Mr. Shenck. 

Thank you for your comments. Next public commenter is Victoria 

Torres, veteran. Ms. Torres, can you hear me? Ms. Torres, can 

you hear me? Okay. Ms. Torres, can you hear me? Ms. Torres, can 

you hear me? Hello, Ms. Torres. Are you Ms. Torres? 

MR. ROBERTS: No, I think --

MR. TOTONCHI: No, I apologize. 

MR. ROBERTS: Still getting her sound set up 

and I admitted Kira Horning, who's representing herself. 

MR. TOTONCHI: I apologize. Sometimes the Zoom 

name doesn't match up with the name, so I just wanted to make 

sure. Ms. -- this is Kira Horning representing herself. Ms. 
 

 

 

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Horning, if you -- could unmute yourself? You have three minutes 

for your public comments. 

MS. HORNING: Okay, thank you. My name is Kira 

Horning(audio) public services. 

MR. TOTONCHI: If you can speak up a little, 

Ms. Horning. I'll start, I'll start the clock over. I'll start 

the clock over, okay? 

MS. HORNING: My name is Kira Horning. I'm an 

occupational therapist and I'm here to speak to you today about 

public (audio) large school district for the last four years 

(audio). However, I work this job with a lingering concern that 

one day my school district (audio) other schools and non -- and 

other nonprofit agencies and that is to switch from hiring 

positions like OTs and PTs as direct employees using contract 

agencies to (inaudible) therapists as contractors. Being a 

school-based contract therapist may seem like a good opportunity 

on paper based on the higher pay per hour. However, these 

therapists usually do not receive insurance through their 

employer. They don't qualify for retirement things or pensions 

through the district, and they're not paid for time off or for 

hours (audio). On top of it all, these therapists who are 

receiving special -- who are servicing special education 

students in public school districts are not currently eligible 

for public service. It might sound reasonable to simply find a 

school-based position that directly hires therapists rather than 
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taking a contract position. However, therapists actively working 

for nonprofits are more and more finding themselves in the 

position where they're in an eligible position one day, and not 

the next. For example, two years ago, the nonprofit agency that 

provides early intervention services to all of the preschool 

aged students in Philadelphia, told all of their therapists and 

specialized instructors, that they would no longer be employed 

by that company. Instead, employees were given the choice 

between staying on as contractors or finding a new position. 

This company is ultimately still paying the therapists, they are 

just using contracting agencies as a middleman to save them 

money by not having to pay for insurance, days off, or indirect 

hours worked beyond a certain point. The outcome was that 

hundreds of therapists previously working for an employer who 

would make them eligible for public service loan forgiveness, 

were no longer eligible. Despite doing the exact same job, 

providing the same public service with the same special 

education population. Many of these therapists have been in this 

position for years making less pay than they would have received 

elsewhere in order to be eligible for public service loan 

forgiveness. They were left scrambling to find any open 

qualifying position with their loan forgiveness future in 

jeopardy. Personally, my student loan debt has increased 50% 

since I graduated. At this point, if my school-based position 

switch to a contract position, no apparent increase in hourly 
 

 

 

 

 

 

 

 

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wages could offset the loss of benefits. 

MR. TOTONCHI: 30 seconds. 

MS. HORNING: But especially detrimental would 

be the loss of public service loan forgiveness eligibility. I'm 

thankful that the public service loan forgiveness program is 

going through important changes and I ask (audio) expanding what 

employers qualify for this program to include independent 

contractors and contractors working for an agency who are 

providing (audio). Thank you. 

MR. TOTONCHI: Thank you. Miss Torres. Ms. 

Horning -- Ms. Torres, are you there? I just saw you. 

Mr. ROBERTS: Just left the meeting. She just 

left the meeting, but we'll let her back in if she rejoins. 

MR. TOTONCHI: Thanks, Brady, for letting me 

know. I understand the next person will be Chris Henjum, 

president of -- I'm going to pronounce it Esqyr SBC. Mr. Henjum, 

if you can unmute. You have three minutes. 

MR. HENJUM: Hi, my name is Chris Henjum, and 

I'm the president of Esqyr SBC, E-S-Q-Y-R. We’re the only public 

benefit corporation focused on test prep and giving back to 

tackle student debt. We have many concerns with PSLF and most 

revolve around one overarching concern. The promise of this 

program isn't merely just to be the 501(c)(3), or government 

employee loan forgiveness program, it's to be the public service 
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loan forgiveness program. No matter what particular employee 

pays you, if you serve the public, you deserve relief. Here's 

just one example of how the interpretation of current rules 

leads to unfairness. Urban government entities have the 

resources to employ their own attorneys, while many rural cities 

need to contract out for more of their city attorney work. As a 

South Dakota Law Review reported recently, nearly 20% of the 

country's residents live in rural areas, but only 2% of those 

attorneys’ nationwide practice in those communities. And as the 

Pew Charitable Trusts noted, rural attorneys often need -- often 

take contracts with public entities to serve their communities. 

So regardless of who pays them, a government attorney serves as 

a government entity’s legal agent. According to Black's Law 

Dictionary, an agent is one who is authorized by a principal to 

act in place of them. Despite those current rules provide 

government attorneys in urban areas with benefits not available 

to similarly situated rural attorneys despite a massive need for 

their services. Luckily, there are solutions under current law 

to address the issue if the program was administered this way. 

First, an agent of a government entity should be deemed that 

government's employee for purposes of PSLF. Currently, under the 

rules, a government employee is an individual who is employed by 

a local, state, federal, tribal government. However, a 

government employee ought to mean work also done as that public 

client’s legal agent. Secondly, and alternatively, the work of 
 

 

 

 

 

 

 

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an agent of a public entity should qualify as public interest 

law service. Currently, the rules say public interest law 

services cannot be organized for profit. But here the actual 

duty of that public entity’s agent is not done to further the 

bottom line of a rural city or an urban city, but to represent 

that public entity in court or advise them on legal issues. 

Therefore, this work should not be deemed organized for profit. 

More broadly, public service should mean having a duty to an 

entity with a with a public good at its center. There are so 

many excluded employers who provide --

MR. TOTONCHI: 30 seconds. 

MR. HENJUM: -- who provide the same public 

service as qualifying entities, but which are unfairly excluded. 

We owe them creative solutions and a fierce commitment to get 

this right. Thank you for your time. 

MR. TOTONCHI: I understand the next public 

commenter is Julie Chris representing herself. Hello, can you 

unmute, please? You're still muted. If you’re on a laptop, it'll 

be the lower left-hand corner. 

MS. CHRIS: I’ve got it. I got it. I got it. 

MR. TOTONCHI: Okay, excellent. You have three 

minutes to make a public comment. 

MS. CHRIS: Thank you. In the PDF materials 

available from this committee, it was noted how confusing the 

statute is that attempts to define employment as public service. 
 

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If the employer is not a 501(c)(3) or a government agency. It’s 

crucial that this confusion be resolved during revamping of the 

PSLF program. The statute’s language includes as qualified a 

private company providing a public service such as health care, 

but then seems to contradict itself by excluding any for private 

companies, such as an LLC that provides the same service. I 

contend that if any company is primarily paid for its services 

by Medicare, Medicaid, or any other government-sponsored social 

program, it should automatically be deemed as providing a public 

service and therefore qualified as a PSLF employer. Case in 

point, I'm an occupational therapist providing treatment to 

children with autism, 98% of whom are on Medicaid, yet since my 

current employer is not a 501(c)(3), but rather a private LLC, 

which by definition is for profit, I’m told I don't qualify for 

forgiveness. In my previous position, my employer held 501(c)(3) 

status. When that employer disbanded their OT program and laid 

me off, virtually all of my Medicaid clients at that time 

immediately followed me to my new clinic. But since the new 

clinic was run by a for profit LLC, my accrued six-year 

eligibility for forgiveness apparently seized. Same exact 

clients. Same exact services paid for by Medicaid, but I worked 

for a different ineligible company. In short, a borrower's 

eligibility should not -- should be directly related to the 

borrower’s contribution to public service, not based on the 

employer’s tax status. This should be retroactive to give relief 
 

 

 

 

 

 

 

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to borrowers who have been providing this type of public service 

since the program began. And on a different note, there's a 

tendency to think of student loan borrowers in their 20s 30s and 

40s. I want to respectfully caution the committee not to forget 

that 22% of current student loan debt is held by millions of 

seniors like me, who went back to school at a late age who 

unless changes are made will no doubt be saddled with student 

loans until death do, we part. Please --

MR. TOTONCHI: 30 seconds. 

MS. CHRIS: (Inaudible) made during these 

proceedings include relief for seniors. To that end, as has 

recently been empowered to do for borrowers with disabilities, I 

propose that President Biden issue full and retroactive blanket 

forgiveness once a borrower has reached their full Medicare 

retirement age. American seniors have enough financial trouble 

in retirement without being burdened with this never-ending 

debt. Thank you. 

MR. TOTONCHI: Thank you. Thank you for your 

comments. 

MS. CHRIS: Thank you. 

MR. TOTONCHI: The next commenter is Kendrick 

Harrison, veteran. And I'm just waiting for him to connect to 

audio. (audio) Mr. Harrison, you have three minutes to make your 

public comments. 

MR. HARRISON: Yes, can you hear me good? 
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First, I'd like to say thank you guys for taking the time to 

address this matter, and to take public comments. I think it's 

really important. I applaud you all for that. I’d also like to 

press upon you guys the importance of regulating this industry. 

My name is Kendrick Harrison. I'm a father, a military veteran, 

an entrepreneur, and I'm also a former August University 

student. For those that don't know about August University, 

they've allegedly stolen $16 million from students and veterans 

such as myself. My family and I were evicted. My credit score 

dropped over 100 points; my car was repossessed all because of 

the deregulation of this industry. August was one of the schools 

that, prior to the deregulation, they were prohibited from 

acquiring such institution. Through deregulation, they were 

allowed to acquire it and subsequently, the mayhem ensued with 

you know, them withholding student stipends, predatory 

practices, it's, it's, it's, it's really a consumer issue that 

gets to the bottom and the core of the fabric of our nation. I 

mean, education is one of the cornerstones of American 

dominance. I mean to be leaders in innovation and things of that 

nature, we need education, and for students and veterans and 

citizens like myself to strive to get a higher education and 

then be met with unscrupulous, you know, dealers like this is 

something has to be done. So, if I could leave anything was with 

you guys, today, it's a call to action, please. You know, do 

something to fix this industry, it doesn't have to be another 
 

 

 

 

 

 

 

 

 

 

 

 

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Harrison family. It shouldn't have been the first one. But the 

thing is, we can fix it. And it starts with what hearings just 

like this. 

MR. TOTONCHI: Thank you for your comment, Mr. 

Harrison. Final public commenter of the, of the day and the week 

is Ashley Hardin, representing herself. Ms. Hardin, are you --

can you hear me? 

MS. HARDIN: Yes. Can you hear me? 

MR. TOTONCHI: Yes, I can hear you. Are you 

able to turn on your camera? And if so, would you like to do so? 

MS. HARDIN: I am. I think I am. I don't know 

how to back out to do it. 

MR. TOTONCHI: It's okay. If you can't do it, 

it's -- there, you figured it out. Excellent. 

MS. HARDIN: How’s that? 

MR. TOTONCHI: Perfect. Ms. Hardin, you have 

three minutes to make -- you disappeared? Can you tap that same 

button again? 

MS. HARDIN: I can, but I am reading from 

something and I can’t do both at the same time. 

MR. TOTONCHI: No problem. whatever you're 

comfortable with. You have three minutes to make your public 

comments. 

MS. HARDIN: Okay. Thank you. I wanted to say 

hello and thank you for this opportunity today. My name is 
 

 

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Ashley Hardin, and I graduated from Brooks Institute, a CEC 

owned school, in 2009. My journey since my enrollment and Brooks 

Institute has been nothing short of a mess. I've spent the past 

15 years sorting through and dealing with what feels very much 

like a bamboozlement where I, along with my colleagues, were 

taken advantage of and preyed upon by not only our college, by 

the federal government and their servicers. I'm not alone when I 

say that I have spent a great deal of time in pain in recalling 

or preparing my BDTR application for the reviewal process, only 

to be part of what I feel like as a blanket denial, which I 

don't think myself nor my colleagues were given a proper review 

nor judgment. If only the mysterious people reviewing our 

applications would actually read them, hear us, and recognize 

that what we've endured is unfair, and it's unjust. So far what 

I've encountered is a waiting game, whereby steadily time 

passes, and no judgment is made. Where's the justice? Where are 

the honest people who have morals and ethics and can see that we 

have literally been preyed upon by those, quote unquote bad 

actors, as many of my colleagues put it. I want to know where 

the buck stops. You know, what happens to us? I'm -- that's --

yeah, that's all I have to say at this point. 

MR. TOTONCHI: Thank you for your comments, 

Ms. Hardin. Another. Thank you so much for your comments. Okay. 

I thank all the public commenters, I thank the committee, I 

think the Department of Education, and everyone involved in this 
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week's session. We look forward to continuing these important 

discussions the week of November 1st. Be well and be safe. 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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Appendix 

Department of Education, Office of Postsecondary Education

Zoom Chat Transcript 

Affordability and Student Loans Committee - Session 1, Day 5, 

Morning, October 8, 2021 

DISCLAIMER: 

Note: The following is the output of transcribing from a

recording. Although the transcription is largely accurate; in 

some cases, it is incomplete or inaccurate due to inaudible 

passages or transcription errors. It is posted as an aid to 

understanding the proceedings at the meeting but should not be 

treated as an authoritative record. 

From Eric Apar (A); State AGs to Everyone: 

I’ll be taking over from Joe as the negotiator for state 

AGs for the afternoon. 

From Daniel (P) - Fin Aid Admin (he/him) to Everyone: 

Kudos to the excellent production team!! 

From Persis Yu, (P), Legal Aid (she/her) to Everyone: 

pyu@nclc.org 

From David (P) - State hi ed agencies to Everyone: 

Thank you for your work on this, Persis. 

From Jaye FFEL agencies P to Everyone: 

I've heard there are IDR pilots for fed loans supporting 

simplification but don't know details. ED may be able to 

share context re: discussions prior to lunch. 

From Daniel (P) - Fin Aid Admin (he/him) to Everyone: 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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+1 for no income self-certification 

From David (P) - State hi ed agencies to Everyone: 

+1 self cert 

From Rachelle Feldman to Everyone: 

+1 self cert. Can always be audited later if fraud is a 

concern. 

From Daniel (P) - Fin Aid Admin (he/him) to Everyone: 

We will be able do this through the FAFSA Verification 

process, and I would suggest the same process... 

From Rachelle Feldman to Everyone: 

Exactly Daniel. 

From Noelia (A) Minority Serving Inst. to Everyone: 

Yes - if students can do it on the FAFSA, they should be 

able to do it across all federal application processes 

From Jeri (P) (she/her), Student Loan Borrowers, 

Primary to Everyone: 

Thank you, Michaela!!!! 

From Dixie (P) Dependent Students (ella/she) to Everyone: 

+1 Michaela 

From Rachelle Feldman to Everyone: 

+1 Michaela 

From Greg, A - Dependant to Everyone: 

+111111 

From Heather - PSLF Advisor to Everyone: 

+1 Michaela 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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From Marjorie (P), 4 Yr Public Institutions 

(she/her) to Everyone: 

+1 Michaela 

From David (P) - State hi ed agencies to Everyone: 

+1 

From Noelia (A) Minority Serving Inst. to Everyone: 

+1 Michaela - we should not be harassing the poor for 

documentation they can’t produce. 

From Bobby (P) Two Year Public Colleges to Everyone: 

+1 Michaela! 

From Will (A) FFEL Agencies/Lenders to Everyone: 

I think this is more about scammers and not necessarily 

poor people. THe Department should leverage the Stop 

Student Debt Relief Act to protect borrowers 

From Will (A) FFEL Agencies/Lenders to Everyone: 

+1 Marjorie 

From Jaye FFEL agencies P to Everyone: 

And hopefully the Stop Act helps prevent fraud perpetrated 

by bad actors. 

From Michaela [P] Ind. Student to Everyone: 

My alternate and I are going to switch momentarily 

From Daniel (P) - Fin Aid Admin (he/him) to Everyone: 

+100000 to David. 

From Bobby (P) Two Year Public Colleges to Everyone: 

during covid many prison programs had to switch to 

correspondence, highlighting many issues. +1 David 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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From Heather (P) - Accrediting Agencies to Everyone: 

I will also be calling on Michale as alternate to provide 

comments. 

From Jeri (P) (she/her), Student Loan Borrowers, 

Primary to Everyone: 

sorry LEU? 

From David (P) - State hi ed agencies to Everyone: 

https://www.higheredinprison.org/publications/thelandscape-of-higher-education-in-prison 

From David (P) - State hi ed agencies to Everyone: 

Provides descriptions and details on that hi ed in prison 

looks like. 

From David (P) - State hi ed agencies to Everyone: 

*what 

From Rachelle Feldman to Everyone: 

For the record in chat Lifetime Eligibility which limits 

Pell to a student to the equivalent of 6 years. 

From Daniel (P) - Fin Aid Admin (he/him) to Everyone: 

Two points: 1. Why are we asking for 2 sites to be 

approved, rather than 1? We require each additional 

location be approved already so why ask for the two? 

From Christina (A) 2-Year Public she/her to Everyone: 

@Aaron do R2T4 regulations apply? 

From Daniel (P) - Fin Aid Admin (he/him) to Everyone: 

Second: Since the Pell as I understand it cannot be 

refunded above the amount of the tuition and fees, the 

student should not be penalized for the full Pell

Eligibility used. Want to make sure that if the student is 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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limited by some outside rule (like refundability) that the 

student's LEU not be impacted. 

From Daniel (P) - Fin Aid Admin (he/him) to Everyone: 

Thanks, Aaron, for answering question 2 above. 

From Jennifer she/ella, (A) Student Loan 

Borrowers to Everyone: 

+1 Dr. McTier 

From David (P) - State hi ed agencies to Everyone: 

Yea, thanks, Aaron 

From Noelia (A) Minority Serving Inst. to Everyone: 

A great story from the Cal State system regarding a 

graduation ceremony held in CA State Prison

https://www.campuscircle.com/review.cfm?r=26325&h=Incarcera 

ted-students-earn-CSULA-degrees-at-first-of-its-kindcommencement-in-a-CA-state-prison 

From Persis Yu, (P), Legal Aid (she/her) to Everyone: 

+1 Dixie 

From Jennifer she/ella, (A) Student Loan 

Borrowers to Everyone: 

+1 Dixie! 

From Jeri (P) (she/her), Student Loan Borrowers, 

Primary to Everyone: 

+1!!!!! 

From Jeri (P) (she/her), Student Loan Borrowers, 

Primary to Everyone: 

Jennifer is coming in for me 

From David (P) - State hi ed agencies to Everyone: 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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Negotiated Rulemaking 10/8/2021 

+1 Marjorie 

From Suzanne (state regulators) (A) to Everyone: 

+1, people first language 

From Jeri (P) (she/her), Student Loan Borrowers, 

Primary to Everyone: 

+11111111 Stan 

From Michaela [P] Ind. Student to Everyone: 

Yes! Thank you for that 

From Greg, A - Dependant to Everyone: 

+1111 

From Dixie (P) Dependent Students (ella/she) to Everyone: 

person first language is so important!!!! 

From Marjorie (P), 4 Yr Public Institutions 

(she/her) to Everyone: 

Thank you for that comment on language Stan. 

From Daniel (P) - Fin Aid Admin (he/him) to Everyone: 

Thank you for calling that out. If I used an inappropriate 

reference, I apologize... 

From David (P) - State hi ed agencies to Everyone: 

+1 Stan! I hope my language was appropriate. 

From Rachelle Feldman to Everyone: 

+1 Stan 

From Suzanne (state regulators) (A) to Everyone: 

subcommittee should get time on the agenda to present 

recommendations 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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Negotiated Rulemaking 10/8/2021 

From Michaela [P] Ind. Student to Everyone: 

Yes. Does the whole of the sub come speak/participate? 

From Dr. McTier (A) Priv. & Non-Profit to Everyone: 

I echo the sentiments of Dr. Stan A.!! 

From Dixie (P) Dependent Students (ella/she) to Everyone: 

Greg will now jump in for Dependent Students 

From Christina (A) 2-Year Public she/her to Everyone: 

I would like to explore this idea of excluding Pell used in 

prison from lifetime usage limits 

From Christina (A) 2-Year Public she/her to Everyone: 

+1 Greg, I have big concerns here 

From Dixie (P) Dependent Students (ella/she) to Everyone: 

+1 Greg 

From Jeri (P) (she/her), Student Loan Borrowers, 

Primary to Everyone: 

+1 Greg. 

From Eric (A); State AGs to Everyone: 

How are we going to define “typically prohibits licensure

or employment of formerly incarcerated individuals” under 

“Program Eligibility”? Licensure eligibility is contingent 

on state law, and the standard for licensure often calls 

for case-by-case analysis, so it isn’t necessarily the case 

that an occupation “typically prohibits licensure.” And as 

for whether an occupation “typically prohibits ... 

employment,” how are we going to measure that? Thank you. 

From Daniel (P) - Fin Aid Admin (he/him) to Everyone: 

+1 to Greg on challenges. especially completing a FAFSA on 

a computer... 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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Negotiated Rulemaking 10/8/2021 

From Daniel (P) - Fin Aid Admin (he/him) to Everyone: 

Also +1 on the issue of different regulations state by 

state for formerly incarcerated individuals and career 

limitations. The challenge will be large for institutions 

offering programs across states. 

From Jenn she/ella, (A) Student Loan Borrowers to Everyone: 

How are students protected if the institution loses its 

eligibility by not complying with the requirements of the 

regulations? 

From Persis Yu, (P), Legal Aid (she/her) to Everyone: 

Josh will be taking the legal aid seat after the break 

From Dixie (P) Dependent Students (ella/she) to Everyone: 

Issue Paper #12: How will the Dept. of Ed ensure that 

people who are incarcerated are not being exploited and

going to quality programs. As well, how is the process of 

filling out an application for FAFSA being simplified (with 

ease of access) seeing as that the process to apply for 

financial aid is difficult when you don't have the 

necessary documents being asked of you. 

From Josh (A), Legal Aid (he/him) to Everyone: 

Apologies in advance if you hear roosters in the background 

when I’m speaking 

From Rachelle Feldman to Everyone: 

Roosters!! 

From Greg, A - Dependant to Everyone: 

So many questions, so many questions LOL 

From Dixie (P) Dependent Students (ella/she) to Everyone: 

Love that, Josh! I have 2 chickens and a rooster at home 

hehe 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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From Josh (A), Legal Aid (he/him) to Everyone: 

Ohio City in Cleveland is magical :) 

From Noelia (A) Minority Serving Inst. to Everyone: 

My neighbors have chickens and they’re my weekend alarm... 

From Brady - FMCS to Everyone: 

Josh, please recognize the roosters as your alternate and 

we will announce 

From Rachelle Feldman to Everyone: 

Josh wins the chat 

From Dixie (P) Dependent Students (ella/she) to Everyone: 

Greg will hop in for Dependent Students 

From Jeri (P) (she/her), Student Loan Borrowers, 

Primary to Everyone: 

But does he have chickens? 

From David (P) - State hi ed agencies to Everyone: 

Suzanne Martindale will be stepping in for me. 

From Josh (A), Legal Aid (he/him) to Everyone: 

We think there should be a definition of origination that

ensures that it tethered to the time that the student signs 

the promissory note and does not involve a process that 

takes time and can be delayed. 

From Daniel (P) - Fin Aid Admin (he/him) to Everyone: 

+1 to Jessica 

From Christina (A) 2-Year Public she/her to Everyone: 

+1 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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From Jessica (P) Proprietary Institutions to Everyone: 

It’s possible that some students may intentionally lie to 

an institution and the Department in order to access 

federal student aid programs. We just want to make sure

that when a student is lying, and the lie was not coerced 

or coached by an institution, that the Department will not 

be holding institutions accountable for false certification

liability concerning HS completion status. Jennifer, is 

this true? 

From Jenn she/ella, (A) Student Loan Borrowers to Everyone: 

+1 Josh! 

From Daniel (P) - Fin Aid Admin (he/him) to Everyone: 

To echo Jessica's point, the FAFSA does not require schools 

to validate a student's assertion of HS graduation unless 

they are selected for V4 or V5 verification. This means 

that it is possible a student could not be honest without

school pressure and a school is allowed to rely on that 

self-certification. 

From Will (A) FFEL Agencies/Lenders to Everyone: 

FMCS When we take a temp chack, can we please turn off 

screen share to see the full table? Thanks 

From Will (A) FFEL Agencies/Lenders to Everyone: 

*check 

From Kayla - FMCS Facilitator to Everyone: 

Yes. we have made that a practice and missed it last 

time. will do. 

From Jeri (P) (she/her), Student Loan Borrowers, 

Primary to Everyone: 

Jenn is coming in 

From Josh (A), Legal Aid (he/him) to Everyone: 
 

 

 

 

 

 

 

 

 

 

 

 

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Thank you, Justin, 

From Daniel (P) - Fin Aid Admin (he/him) to Everyone: 

+1 to Greg... 

From Daniel (P) - Fin Aid Admin (he/him) to Everyone: 

Mistakes happen on both sides.... 

From Bobby (P) Two Year Public Colleges to Everyone: 

+1 Greg 

From Dixie (P) Dependent Students (ella/she) to Everyone: 

+1000000000 Greg students are not intentionally trying to 

punk the system let's get that 10000000% clear. 

From Jessica (P) Proprietary Institutions to Everyone: 

This isn’t a HS diploma example, but it is a broader 

example. 

From Jeri (P) (she/her), Student Loan Borrowers, 

Primary to Everyone: 

++! Jenn! 

From Michaela [P] Ind. Student to Everyone: 

That's a contract... 

From Jessica (P) Proprietary Institutions to Everyone: 

I’m so sorry everyone! I updated the wrong document 

From Jennifer - ED negotiator to Everyone: 

685.301(a)(6) - the date the school creates the electronic 

loan record 

From Jessica (P) Proprietary Institutions to Everyone: 

Thank you, Michaela! 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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From Jenn she/ella, (A) Student Loan Borrowers to Everyone: 

Jeri is back 

From Jeri (P) (she/her), Student Loan Borrowers, 

Primary to Everyone: 

Sorry, I am back. 

From Jenn she/ella, (A) Student Loan Borrowers to Everyone: 

Sorry I forgot to hit enter 

From Michaela [P] Ind. Student to Everyone: 

I am back to the table 

From Josh (A), Legal Aid (he/him) to Everyone: 

The two examples I mentioned were: (1) students unable to 

obtain or maintain employment because they do not speak 

English; and (2) students unable to obtain employment 

because school lacked type of programmatic accreditation

necessary to qualify the student for professional 

certification required by most employers 

From Daniel (P) - Fin Aid Admin (he/him) to Everyone: 

Concerns about students who change programs on their own

initiative (without coercion by an institution) after loan 

certification / origination. 

From Marjorie (P), 4 Yr Public Institutions 

(she/her) to Everyone: 

Agreed about the issue of providing sufficient time to 

allow borrowers to apply. 

From Jeri (P) (she/her), Student Loan Borrowers, 

Primary to Everyone: 

@ timelines when does the 30 time start? 

From Greg, A - Dependant to Everyone: 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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Could you define signature specimen? 

From Josh (A), Legal Aid (he/him) to Everyone: 

We will follow up with ideas for electronic authorization. 

Thank you, Jennifer. 

From Josh (A), Legal Aid (he/him) to Everyone: 

Something more formal to come, but one idea for electronic 

signatures is to include a presumption that unless the 

Department can provide proof that the borrower is the

person who agreed to the loan electronically, then the loan 

must be discharged 

From Josh (A), Legal Aid (he/him) to Everyone: 

Electronic authorization& 

From Josh (A), Legal Aid (he/him) to Everyone: 

Jessica — thank you for circulating that indictment. I’m 

not sure I see the connection to false certification, but I 

appreciate the broader point that fraud happens. 

From Jessica (P) Proprietary Institutions to Everyone: 

I hear your point, Josh. If I find a more specific example, 

I will circulate it. 

From Josh (A), Legal Aid (he/him) to Everyone: 

+1 Suzanne 

From Michaela [P] Ind. Student to Everyone: 

+1 

From Josh (A), Legal Aid (he/him) to Everyone: 

Agree on need to eliminate requirement of judicial 

determination. Also agree on need for flexibility on 

evidence. 

From Daniel (P) - Fin Aid Admin (he/him) to Everyone: 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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Negotiated Rulemaking 10/8/2021 

Supporting the idea that Grad PLUS and Parent PLUS would be 

eligible for these same provisions if the falsification is 

proven under these new standards. 

From Persis Yu, (P), Legal Aid (she/her) to Everyone: 

I am back 

From Josh (A), Legal Aid (he/him) to Everyone: 

If we have extra time, can we have extra public comment? 

From Dixie (P) Dependent Students (ella/she) to Everyone: 

^ 

From Daniel (P) - Fin Aid Admin (he/him) to Everyone: 

+1 to Josh. If we have any waitlist, we could include 

them. 

From Marjorie (P), 4 Yr Public Institutions 

(she/her) to Everyone: 

+1 Automation 

From Josh (A), Legal Aid (he/him) to Everyone: 

Persis and I will be rotating in this discussion based on 

what we discussed throughout the week 

From Kayla - FMCS Facilitator to Everyone: 

Thanks, Josh. 

From Justin (P) Service Members and Veterans to Everyone: 

Some follow-up thoughts related to false discharge for 

veterans: (1) Colleges should not be allowed to take out

loans in a veteran’s name without extra documentation to 

prove the veteran truly wants the loan. For example, 

perhaps colleges could be required to produce a paper and 

pen signature on a piece of paper with a large red stop

sign that says, “STOP: Do not sign unless you want student 

loans” -- to prove the veteran really does want a loan. (2) 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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The Department needs to come up with a solution to stop 

colleges that create fake email accounts for students in 

order to confirm loans for them that the students don’t 

know anything about. (3) Most students -- not just veterans 

-- have no idea what the words “Master Promissory Note”

mean. We ask the Department’s Office of General Counsel to 

analyze whether the Department can rename it as “Student 

Loan Agreement” or at least give it a subtitle. 

From Daniel (P) - Fin Aid Admin (he/him) to Everyone: 

Switching with Alyssa for this issue - my alternate 

From Alyssa (A) Fin Aid Administrators to Everyone: 

I am in for Daniel 

From Dixie (P) Dependent Students (ella/she) to Everyone: 

joining in on behalf of dependent students 

From Christina (A) 2-Year Public she/her to Everyone: 

+1 

From Daniel (P) - Fin Aid Admin (he/him) to Everyone: 

Back in 

From Jenn she/ella, (A) Student Loan Borrowers to Everyone: 

+1 Dixie! 

From Heather - PSLF Advisor to Everyone: 

I'll pull together information for the committee on SOC and 

the listed public services from the statute. Thank you for 

the comment, Alyssa. 

From Raj - Advisor Econ/Higher Ed/Data to Everyone: 

Dixie -- I will do what I can to find estimates on these 

questions in research and data. If anyone's constituent

groups have good data on this, feel free to have them send 

it my way. 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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From Heather - PSLF Advisor to Everyone: 

Thanks for that Jeri and Dixie. I'll look at options for 

defining full-time service that better includes such 

circumstances. 

From Dixie (P) Dependent Students (ella/she) to Everyone: 

Thank you, Raj and Heather! Appreciate y'all pulling info 

on this. 

From Jeri (P) (she/her), Student Loan Borrowers, 

Primary to Everyone: 

Any chance of continuing the administrative forbearance 

until the review process is done? 

From Heather - PSLF Advisor to Everyone: 

Thanks, Jennifer. I will provide additional ideas to ED 

and this committee on that point. 

From Marjorie (P), 4 Yr Public Institutions 

(she/her) to Everyone: 

Agree with Jeri. 

From Bobby (P) Two Year Public Colleges to Everyone: 

In addition, want to reiterate consideration for graduate 

research/teaching assistants that fall below half-time 

student status and are required to begin paying on their 

loans. Especially in STEM fields, they often have adjunct 

teaching assignments as well as research responsibilities 

but are not considered full time as defined by 30 hrs. 

From Heather - PSLF Advisor to Everyone: 

Thanks, Bobby. I'll also look closely at that. 

From Dixie (P) Dependent Students (ella/she) to Everyone: 

+1 Bobby! Super important. 

From Jaye FFEL agencies P to Everyone: 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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Data Request: Similar to IBR Examples demonstrate financial 

implications of capping vs. non-capping events; cost and 

payment implications. Examples should factor proposed 

changes. Also demonstrate implications for customers 

making monthly payments on loans with ‘buckets’ of

outstanding interest, such as number of payments to be made 

before payments will be applied to principal. 

From Raj - Advisor Econ/Higher Ed/Data to Everyone: 

Jaye -- got it, thanks. I will try to math this out (my 

new favorite phrase) 

From Daniel (P) - Fin Aid Admin (he/him) to Everyone: 

+1 to Josh! 

From David (P) - State hi ed agencies to Everyone: 

+1 on the triad 

From Suzanne (state regulators) (A) to Everyone: 

+1 to Eric, set federal floor and also allow stronger yet 

consistent state law claims to be bases for relief 

From Josh (A), Legal Aid (he/him) to Everyone: 

+1 

From Christina (A) 2-Year Public she/her to Everyone: 

I would like the Department to consider relief from LEU for 

Pell received while incarcerated 

From Daniel (P) - Fin Aid Admin (he/him) to Everyone: 

Have I mentioned interest? And ensuring the balances don't 

go up (negative amortization) during IDR. 

From Dixie (P) Dependent Students (ella/she) to Everyone: 

+1 Dr. McTier 

From Justin (P) Service Members and Veterans to Everyone: 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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Cont. RE: Veterans, False Certification, related issues: 

(4) The Department should establish a way to let students 

apply for Pell grants without also applying for loans or 

should find a way to mark the FAFSA form so students can 

apply only for grants and no loans. Veterans have reported

they filled out paperwork they were told was only for 

grants, but they ended up with loans. (5) Please consider 

homelessness; traumatic brain injury; PTSD; and lack of 

access to the internet (particularly for loans taken out to

enroll in entirely online programs) as legitimate reasons 

to grant a False Certification application if a veteran 

brings one. PTSD or homelessness shouldn’t block a veteran 

from getting a loan if he wants it, but it should be 

recognized by the Department as a legitimate reason to 

discharge the loans of a veteran who files a False 

Certification petition. 

From Jeri (P) (she/her), Student Loan Borrowers, 

Primary to Everyone: 

+1 to the staff 

From Daniel (P) - Fin Aid Admin (he/him) to Everyone: 

Snaps to the Department and also to the FEMC staff. 

From Dixie (P) Dependent Students (ella/she) to Everyone: 

^ 

From Greg, A - Dependant to Everyone: 

+1 to the facilitators! 

From Michaela [P] Ind. Student to Everyone: 

YES! Ty all 

From Daniel (P) - Fin Aid Admin (he/him) to Everyone: 

Or *FMCS 

From Brady - FMCS to Everyone: 
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Negotiated Rulemaking 10/8/2021 

https://www2.ed.gov/policy/highered/reg/hearulemaking/2021/ 

index.html for all added or relevant materials.