Negotiated Rulemaking - 12/06/21

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 DEPARTMENT OF EDUCATION

OFFICE OF POSTSECONDARY EDUCATION

AFFORDABILITY AND STUDENT LOANS COMMITTEE 

NEGOTIATED RULEMAKING SESSION 3, DAY 1, MORNING

December 6, 2021

O n the 6th day of December, 2021, the

following meeting was held virtually, from 10:00 a.m.

to 12:00 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

MS. MACK: Good morning, everyone, and 

welcome to the United States Department of Education's 

Negotiated Rulemaking with the Affordability and Student 

Loans Committee's third session, session three. My name 

is Kayla Mack and I'm from the Federal Mediation and 

Conciliation Service, and I and my team will be 

facilitating this morning's proceedings. As we get 

started, I want to turn it directly over to the 

Department's Federal Negotiator, Ms. Jennifer Hong, for 

her introduction in any opening remarks that she may 

want to make. Jennifer, please.

MS. HONG: Hey, thank you, Kayla. I 

just wanted to say good morning and welcome everybody 

back to our third and final session of negotiated 

rulemaking on the affordability and student loans table. 

Again, my name is Jennifer Hong and I'm the federal 

negotiator representing the Department on these issues. 

I just like to express my gratitude on behalf of the 

Department on the work that has gone into thinking about 

the numerous agenda items for this rulemaking, and that 

we look forward to a productive third session with the 

ultimate goal of reaching consensus on the issues before 

you. You'll note that between sessions two and three, 

we've made every attempt to take your proposals under 
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thoughtful consideration. And looking back throughout 

the course of this rulemaking, you'll notice that we 

have taken many of your suggestions and incorporated 

them into the proposed regulatory text. I look forward 

to discussing these further with you. Thank you.

MS. MACK: Alright, thank you, 

Jennifer. Now, throughout this week, we may at certain 

times be joined by several non consensus taking 

participants from the Department's Office of General 

Counsel. Those individuals are Mr. Brian, Siegel, Todd 

Davis and Soren Lagaard. I believe we have Brian with us 

this morning. Good morning, Brian.

MR. SIEGEL: Good morning, everyone.

MS. MACK: Thanks, Brian. We'll also 

have from the Department throughout this week Mr. Aaron 

Washington and Ms. Vanessa Gomez, who will be screen 

sharing documents and perhaps participating in live 

editing as we review the proposed regulatory text. 

Vanessa and Aaron, good morning.

MS. GOMEZ: Morning, everyone,

MR. WASHINGTON: Morning, everyone.

MS. MACK: Alright, so thank you from 

those of you, from the Department. Next, I would like to 

briefly reintroduce the esteemed members of our 

Affordability and Student Loans Committee. So again, 
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we'll go through each constituency and invite the 

primary negotiator and the alternate negotiator to 

briefly check in with us. So for the constituency group 

accrediting agencies, we have our primary Dr. Heather 

Perfetti.

DR. PERFETTI: Good morning, everyone. 

Heather Perfetti here president of the Middle States 

Commission on Higher Education.

MS. MACK: Thank you, Heather and our 

alternate Dr. Michale McComis.

DR. MCCOMIS: Good morning, Mike 

McComis, Executive director with the Accrediting 

Commission of Career Schools and Colleges.

MS. MACK: Thank you, Michale. For the 

constituency of dependent students, we have our primary 

Ms. Dixie Samaniego.

MS. SAMANIEGO: Good morning, 

everyone. My name is Dixie. I serve as a Chief 

Governmental Officer for Cal State Fullerton ASI and 

also the vice chair of legislative affairs for the Cal 

State Student Association. And Greg won't be with us 

this week.

MS. MACK: Okay, thank you for letting 

us know, Dixie. So we will not have alternate Mr. Greg 

Norwood with us. Next for the constituency group, 
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Federal Family Education Loan Lenders and/or Guarantee 

Agencies we have our primary Ms. Jaye O'Connell.

MS. O'CONNELL: Good morning, Jaye 

O'Connell, I'm the director of Compliance at Vermont 

Student Assistance Corporation. Nice to see you.

MS. MACK: Thank you, Jaye. And we 

have our alternate Mr. Will Shaffner.

MR. SHAFFNER: Good morning, everyone. 

Welcome to week three. It's getting down to the crunch 

here. I'm Will Shaffner, director of business 

development and government relations at MOHELA and it's 

an honor to be with you guys today. Thanks.

MS. MACK: Thank you, Will. For 

constituency group financial aid administrators at postsecondary institutions. We have our primary Mr. Daniel 

Barkowitz.

MR. BARKOWITZ: Hello everyone and 

happy holidays. It's Daniel Barkowitz, assistant vice 

president of Financial Aid and Veterans Affairs at 

Valencia College in beautiful Orlando, Florida. And 

happy to be with you for another week where the rest of 

you have snow. We have gorgeous weather. Come visit us 

in Orlando.

MS. MACK: Thank you for reminding us 

Daniel and we have our ultimate Ms. Alyssa Dobson.
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MS. DOBSON: Good morning, everybody. 

Alyssa Dobson, the director of financial aid and 

scholarships at Slippery Rock University.

MS. MACK: Thanks Alyssa. For the 

constituency group four-year public institutions, we 

have our primary Dr. Marjorie Dorime-Williams.

DR. DORIME-WILLIAMS: Good morning, 

everyone. It's Dr. Marjorie Dorime-Williams, assistant 

professor at the University of Missouri, Columbia. Glad 

to be here again.

MS. MACK: Thanks, Marjorie. And we 

have our alternate Rachelle Feldman, who will be joining 

us later in today's session. For our constituency group 

independent students we have our primary Ms. Michaela 

Martin.

MS. MARTIN: Hi, it's Michaela and 

today it'll be 71 in Southern California. Daniel, left 

coast is the best coast. Glad to be here today.

MS. MACK: Thanks. And we also have 

our alternate Dr. Stanley Andrisse.

DR. ANDRISSE: Morning, everyone. Stan 

Andrisse, assistant professor at Howard University 

College of Medicine and the executive director of From 

Prison Cells To PhD. Pleasure to be with you all or 

pleasure to be here with you all.
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MS. MACK: Thank you Stan. For our 

constituency group individuals with disabilities or 

groups representing them, we have our primary Ms. 

Bethany Lilly.

MS. LILLY: Good morning, everyone. 

Bethany Lilly with the Arc of the United States here on 

behalf of the Consortium for Citizens with Disabilities. 

Hope everybody has plenty of coffee.

MS. MACK: Thank you Bethany and we 

have our alternate Mr. John Whitelaw.

MR. WHITELAW: Good morning, everyone. 

John Whitelaw, advocacy director at Community Legal Aid 

Society in Delaware. Thank you.

MS. MACK: Thank you, John. For our 

constituency group legal assistance organizations that 

represent students and/or borrowers, we have our primary 

Ms. Persis Yu.

MS. YU: Hello everyone, nice to be 

here today. I'm Persis Yu for legal aid of the National 

Consumer Law Center.

MS. MACK: Thank you Persis. And we 

have our alternate Mr. Joshua Rovenger.

MR. ROVENGER: Morning, everyone. Josh 

Rovenger from the Legal Aid Society of Cleveland 

pronounced he/him, great to see everyone.
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MS. MACK: Thank you, Josh. For the 

constituency group representing minority serving 

institutions we have Ms. Noelia Gonzalez.

MS. GONZALEZ: Good morning. Noelia 

Gonzalez, I'm the interim systemwide director for the 

California State University System. Thank you.

MS. MACK: Thank you Noelia. For 

private nonprofit institutions, we have our primary Ms. 

Misty Sabouneh.

MS. SABOUNEH: Hey everyone. Misty 

Sabouneh Assistant Vice President Financial Literacy at 

Southern New Hampshire University and I'm excited to be 

here with you all for week three. We made it.

MS. MACK: Thanks Misty. And we have 

our alternate Dr. Terrence McTier Junior.

DR. MCTIER: Good morning, everyone.

MS. MACK: Alright. For proprietary 

institutions, we have our primary Ms. Jessica Barry.

MS. BARRY: Hello, everyone, I'm 

Jessica Barry, president of the Modern College of Design 

in Kettering, Ohio. I'm pleased to be with you this 

week.

MS. MACK: Thank you, Jessica. And we 

have our ultimate Dr. Carol Colvin.

DR. COLVIN: Morning, everyone. I'm 
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Carol Colvin and I'm the senior vice president of 

financial aid for South College.

MS. MACK: Alright. For our 

constituency group representing states attorneys 

general, we have our primary Mr. Joseph Sanders.

MR. SANDERS: Morning everyone. Joe 

Sanders on behalf of state AGs. It's an honor to be here 

and to work on the final week of the rulemaking with 

everyone looking forward to it.

MS. MACK: Thank you, Joe. And we have 

the alternate Mr. Eric Apar.

MR. APAR: Hi everyone. I'm Eric Apar, 

I'm the assistant deputy director for policy and 

strategic planning at the New Jersey Division of 

Consumer Affairs. Really good to see you all again.

MS. MACK: Thanks, Eric. For state 

higher education executive officers, state authorizing 

agencies and/or state regulators, we have primary Dr. 

David Tandberg.

DR. TANDBERG: Hi everyone. It's a 

real pleasure to be with you today. David Tandberg, 

senior vice president of policy research and strategic 

initiatives at the State Higher Education Executive 

Officers Association, more commonly known as SHEEO.

MS. MACK: Thank you David. And we 
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have our alternate Ms. Suzanne Martindale.

MS. MARTINDALE: Greetings from a very 

very Foggy Oakland, California. This is Suzanne 

Martindale, I'm the senior deputy Commissioner over at 

the California Department of Financial Protection and 

Innovation. Good to be with you.

MS. MACK: Thanks, Suzanne. For 

student loan borrowers, we have our primary Ms. Jeri 

O'Bryan-Losee.

MS. O'BRYAN-LOSEE: Good morning, 

everybody. And welcome to never sunny Albany, New York, 

and I look forward to this last session with everyone.

MS. MACK: Thanks, Jeri. And we have 

Ms. Jennifer Cardenas as alternate.

MS. CARDENAS: Buenos Dias. Good 

morning. Yes, Jennifer Cardenas she/her. I'm an outreach 

specialist for Young Invincibles here in California.

MS. MACK: Thanks, Jen. For 

constituency group two-year public institutions, we have 

our primary Dr. Robert Ayala.

DR. AYALA: Good morning, ladies and 

gentlemen. Bobby Ayala here, glad to see everybody.

MS. MACK: And and we have our 

alternate Dr. Christina Tangalakis.

DR. TANGALAKIS: Good morning from Los 
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Angeles. I'm the associate dean of financial aid at 

Glendale College. Looking forward to finishing strong 

this week.

MS. MACK: Thank you. And for our 

constituency group, United States service members 

veterans or groups representing them, we have our 

primary Mr. Justin Hauschild.

MR. HAUSCHILD: Morning, everybody. 

Looking forward to being here with you in this final 

week.

MS. MACK: Thanks, Justin. And we have 

our alternate miss Emily DeVito.

MS. DEVITO: Good morning and happy 

December. Emily DeVito, I am associate director of the 

National Legislative Service for the Veterans of Foreign 

Wars, the VFWs, Washington, D.C. office.

MS. MACK: Thank you, Emily. Now we 

have one additional committee member to introduce to you 

all for session three. Ms. Anne Precythe was nominated 

and approved by this committee during our second session 

back in November. She's now accepted her nomination to 

the committee and joins us this morning, so I want to 

welcome Ms. Precythe and ask her to introduce herself to 

the committee.

MS. PRECYTHE: Thank you, Kayla. My 
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name is Anne Precythe and I'm the current president for 

the Congressional Leaders Association and the director 

of corrections in the state of Missouri. And I'm very 

honored to be here. Thank you so much.

MS. MACK: Great. Thank you, Anne. And 

thank you to all of the committee members for going 

through that, checking in with us, introducing 

yourselves and being here today. Next, we would like to 

take the opportunity to introduce to you all or 

reintroduce to you all our two expert advisors who 

continue to provide experience and research based data 

information and recommendations to the committee. I 

would like to welcome the adviser on qualifying 

employers on the topic of Public Service Loan 

Forgiveness Ms. Heather Jarvis.

MS. JARVIS: Good morning, everyone. 

Heather Jarvis, I'm a private attorney specializing in 

student Loans and executive director of Foster Us.

MS. MACK: Thank you, Heather. And I'd 

also like to take this opportunity to welcome the 

adviser on economic and or higher education data Dr. 

Rajeev Darolia.

DR. DAROLIA: Good Morning. Raj 

Darolia faculty at the University of Kentucky. Go blue.

MS. MACK: Thank you, Raj. Thank you 
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again to both of our advisors. Last, I would like to 

remind you all of your FMCS facilitation team. We're 

here this week again as a third party neutral. We will 

help with hosting and running the technology and the 

platform, facilitating the discussions and taking 

consensus decision making checks this week, operating 

within the protocols, working with the committee as 

appropriate and breakouts and caucuses and spaces during 

the session, soliciting and distributing any information 

and data and documents that need to be shared out and 

really assisting you all in a meaningful and productive 

way throughout the process. I've already introduced 

myself as Kayla Mack. I would like to round out the 

introductions with my team, Ms. Cindy Jeffries.

MS. JEFFRIES: Good morning, everyone. 

And welcome back.

MS. MACK: And Mr. Brady Roberts.

MR. ROBERTS: Good morning, everyone. 

Happy to be here.

MS. MACK: And last but certainly not 

least, I'd like to introduce you all to FMCS mediation 

technology specialist, Mr. Kevin Hawkins, who is here to 

support our facilitation team's efforts this week.

MR. HAWKINS: Good morning, everyone. 

Happy to be with you.
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MS. MACK: Alright, thank you, Kevin. 

Before we go ahead and jump into our substantive issues, 

we have a few reminders. Please make sure that you're 

naming convention on screen matches that of what we've 

been doing in sessions one and two. We invite you all to 

share your first name, how you'd like to be referred in 

lieu of a first name. If you have a different preference 

P or an A for primary or alternate and an abbreviated 

reference to your constituency group. This helps us 

easily identify you, but also assist the viewing public 

with knowing who we all are. While you're not speaking, 

we do ask that you remain on mute. You've all done a 

wonderful job of this thus far, but that helps cut down 

on any background noise or distractions. If you're at 

the main virtual table and want to speak, please raise 

that virtual hand that'll throw you up in a particular 

order. If you lower your hand and rephrase it, it'll 

take you to the end of the line. Please know at all 

times we're tracking those and will call on you in the 

order that you appear on on our screen unless we ever 

need to deviate to that to jump back to the Department 

or to general counsel for a quick comment or response 

that would assist us in moving forward with the dialog. 

Should you have any technology related issues, questions 

or concerns, please don't hesitate to message Brady in 
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the chat or send him a quick email and he'll share his 

email address right now in the chat so that you all have 

that. The chat feature will remain enabled as it has in 

our prior sessions. Keep in mind, any message placed in 

the chat that goes out to everyone is going to be 

subject to our ongoing developing transcript that will 

be that will ultimately be posted online for all to see. 

Each day the public has the opportunity to view and 

observe and watch our work here. The Department has 

posted a registration link for that on their website. We 

can again post a link in the chat for all to see Brady 

if you'll do that greatly appreciate it. Not only is 

that where the public registers to watch the 

proceedings, but that's where we can find all of the 

documentation that has been shared out with the 

committee thus far. Consistent with our prior sessions, 

we're going to invite only our primary negotiators to 

remain on screen during deliberations. If at any time an 

alternate is going to substitute in for their primary or 

is being invited by the primary to comment on something, 

we would ask that they come on screen so that when 

they're sharing out, everyone can see. Same thing for 

the advisors. At some point we'll ask you to turn off 

your cameras, but when we're inviting you back to the 

main table or you have something to share again, we'll 
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ask you to turn those those cameras on. This will help 

us all know who is at the main table for purposes of 

consensus decision making because we're going to get 

this session. We are going to engage. Let's talk about 

that for a moment because it came up earlier, and I want 

to make sure that we're all on the same page. We're 

going to engage in consensus decision making to develop 

proposed regulations. We are going to utilize good 

faith, group problem solving to address the interest of 

you all as committee members and ultimately hopefully 

reach unanimous agreement otherwise described as 

building consensus. It's not a majority vote, but rather 

an expression of agreement or dissent, and we have built 

consensus once there is no consent by any of the 

committee members. So no individuals can be out voted 

because again, it's not a vote, we are only in consensus 

if everyone is on the same page. A few important notes 

here about consensus decision making. For the protocols, 

members of the committee should not block or withhold 

consensus unless they have serious reservations about 

what is being proposed. So if when we take a consensus 

check and you are in fact a blocker or a down thumb, 

which I'll cover the thumbs again in the second, we are 

going to ask you at that time to articulate your serious 

reservation about what is being proposed and also offer 
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up a tweak, an idea or an alternative that could 

actually get you to a place of consensus on that issue. 

To take the consensus checks, we are going to use the 

three thumb approach, so this is an expression of 

agreement, okay? So this means you are in agreement with 

and fully support what is being proposed. We've utilized 

in our temperature checks the sideways thumb and we will 

do that with consensus as well. This is also an 

expression of agreement. It is in fact an indication 

that you don't feel as strongly as you might if you were 

up here. But this does mean that you will fully support 

the proposal at hand and you are in in fact, in 

consensus. Then we have the down one. This is an 

expression of dissent. This means that you do have a 

serious reservation. And again, when you are down, we 

will ask you to express or articulate for the committee 

that serious reservation and articulate what would help 

you get to here and be in consensus with the rest of the 

committee. As the protocols provide, and as we've 

chatted several times in prior sessions, we are going to 

take consensus checks on each of the issues separately. 

There are 12 issues, so we will be taking 12 consensus 

checks. For some of the issues they are have been 

combined in issue papers. For instance, for example, the 

Borrower Defense, six, seven, and eight are in fact in 
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papers together. When we get to a point where we are 

taking consensus on issue six, seven, or eight, we will 

ask the Department to clearly outline what is being 

included within issue six for purposes of consensus. 

That way, the committee is very clear on what, in fact, 

they are taking a consensus check on at that time. But 

again, a separate consensus checks for each of the 

issues, so there will ultimately be 12. We are not 

grouping them or tying them together, so we will be 

asking you to only block if you have a serious 

reservation about that proposal for that issue, alright? 

In prior sessions, we took a lot of temperature checks. 

This being our third and final session together, we are 

moving forward to an official consensus decision making. 

We will continue to remind you of that. But again, no 

more temperature checks. We're going to be taking 

official consensus decision making checks. Stan, I see 

your hand.

DR. ANDRISSE: Yes, I had a quick 

question in that regard, if that's okay. So for any 

given issue, will we take temperature checks within that 

issue? Like when we take sections to check before we as 

we move through to a final official consensus?

MS. MACK: At this time, that's not 

the plan Stan. Instead, what will we will be doing is 
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asking the Department to walk us through the entirety of 

the issue paper and red text on a particular issue and 

then move to a consensus check. If we find that we're 

not in consensus when we need to revisit certain pieces, 

it may make sense to take temperature checks to advise 

where we are. But the intent is not to utilize at this 

point, temperature checks, but only consensus checks. 

Does that answer your questions Stan?

DR. ANDRISSE: Yes. And I guess just I 

mean, there will be discussion all throughout on the 

different points. So I guess if there was, you know, it 

would be brought up that something may not be a 

consensus because of a particular point, As well as at 

the point of consensus, some would also bring it up, but 

what I have already been discussed as well.

MS. MACK: Yeah, we're going to Walk 

through the issue papers. We will discuss those, we will 

move to a consensus check, if anyone is in fact a block 

on the consensus so that we're not in consensus, we will 

revisit the points that are leading anyone and everyone 

to be down. Yes. Okay, perfect. Persis, please.

MS. YU: Thank you. I have a question. 

And how will, when we get to the consensus check, how 

will the consensus checks be recorded for the 

transcript?
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MS. MACK: So if we're reaching 

consensus, everyone will be here or here, then we will 

note that everyone has approved, right, and is an 

agreement. If anyone is blocked, it will be in the 

transcript because we will be calling on those 

individuals to articulate why they are a blocker, what 

their serious reservation is and what their idea is to 

lead the committee to consensus. All of that dialog will 

be part of the transcript.

MS. YU: Is there any way that we 

could instead do a roll call as we are so that each 

constituency is on the record, on their particular vote 

on each particular issue?

MS. MACK: We can consider that. Let 

me chat with my team when we get to to a break and we 

could consider going through a roll call and calling on 

each constituency to express where they are in terms of 

the consensus check.

MS. YU: I would appreciate that. 

Thank you.

MS. MACK: Yep. Justin, please.

MR. HAUSCHILD: Thanks so much. Will 

there be an opportunity, it sounds like the Department 

or the facilitators perhaps intend to follow up with 

folks that are blocking consensus were not comfortable 
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with consensus. Will there be an opportunity at that 

point or other negotiators to seek clarity from those 

blocking consensus as well?

MS. MACK: After we invite an 

individual to articulate what their serious reservation 

is and what ideas they have for moving the committee to 

consensus, the dialog will open up to the full 

committee. So if there are clarifying questions or more 

comments to make, we'll engage in that dialog as we 

continue to seek consensus. David.

DR. TANDBERG: Yeah I was just 

addressing the issue that Persis raised. I like the idea 

of a roll call where we express our vote. If that's not 

possible, I would at least like the transcript to record 

whether they're sideways, up, or down. There is a 

difference between us. I know for the consensus sideways 

or up is recorded the same way, but it is an expression 

of a different feeling in regards to the proposal. So at 

a minimum, let's have that recorded, would be my 

suggestion if it's not a full roll call.

MS. MACK: Okay. Thank you, David. 

Heather.

DR. PERFETTI: So I guess I'm just 

needing some clarification in terms of the consensus 

check. If there are thumbs down, do you anticipate 
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another call for consensus after discussion and how do 

we know when the call for the final consensus check will 

happen?

MS. MACK: So I imagine that we will 

approach that on a case by case basis if we have, for 

instance, one individual who has a downward thumb, they 

articulate their serious reservation, offer a suggestion 

as to how they could reach consensus. We may, it may 

make sense right then and there for us then to take 

another official consensus check. If there are multiple 

thumbs down and multiple issues that we need to try to 

work through, we may at some point continue that dialog 

and then reach a place where we pause and return to that 

issue at a later time. Again, I think it will depend on 

the nature of the issue and the nature of the serious 

reservations and ideas to get us to consensus. But at 

every juncture, we, as the facilitation team will make 

it clear to you all that we are taking an official 

consensus check, what we are taking a check on, when we 

are pausing the issue, and when we hope to return to it. 

Keep in mind that we're we're in our final session, so 

we're going to constantly be balancing moving you 

forward, right, and making progress, but also making 

sure that you're prepared to take these consensus checks 

and we've addressed everything to to folks satisfaction. 
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Daniel.

MR. BARKOWITZ: So this is a question 

both for me, but also on behalf of Anne, who's new to 

this conversation. Again, welcome Anne to the table. 

What is the impact specifically of an abstention? So I'm 

imagining that for someone just like a man who's not 

been part of the conversation to date may not have the 

background if she or I or anyone at the table chooses 

not to vote. I'm just trying to get on the record the 

official impact of abstention on consensus reaching.

MS. MACK: What strikes me there, 

Daniel, is we have talked about or the protocols 

contemplate anyone who is absent or not participating in 

consensus that is deemed to to move it forward and be in 

consensus. It is not the same as dissent. So at any 

time, if a constituency isn't represented at the table 

and we take an official consensus check, their 

constituency is deemed to move that forward and be in 

consensus.

MR. BARKOWITZ: Thank you. I just 

wanted, for the record, I wanted to make sure that that 

was clear.

MS. MACK: Appreciate it.

MR. BARKOWITZ: Yeah, thank you.

MS. MACK: Yeah, no problem. Anyone 
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else at this point have a question or comment? Okay, 

alright. The last piece that I want to remind you all 

is, again, our facilitation team is going to continue to 

push you forward through the issue so that we can make 

progress and make sure that we get through everything 

that we intend to get through this week. However, if we 

are ever asking you to take an official consensus check 

and you need a moment to process, to think, we want to 

empower you all to raise your hand and let us know that 

you do, in fact, need a moment. Ok, we don't want anyone 

to feel pressured into taking a consensus check at this 

very moment. Again, we're going to be trying to balance 

all of the issues in our limited time together in this 

third session and want to make sure that we cover 

everything. So again, if we are pushing you through to 

consensus and you need a moment, please raise your hand 

and let us know you are all empowered to do so. Okay? We 

will have public comments at the end of each day the 

same way that we have for the last 30 minutes. Folks are 

signing up for that. You all have the agenda. So this 

morning will be starting with total and permanent 

disability discharge issue number one and then moving 

into issue number two, closed school discharge. You will 

notice that we have placed the sixth issue to address 

the Pell Grant eligibility. Please note that the 
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Department and the subcommittee members who are 

presenting have worked together. You are going to be 

receiving a presentation from the subcommittee Wednesday 

at 11:00. So we may have to modify the order just a bit 

because we will be doing that presentation at that time, 

regardless of where we happen to be with the other 

issues at that time. So again, plan on that presentation 

at 11:00 on Wednesday. Okay. With that, I am happy to 

turn us over to Jennifer so that we can begin walking 

through our first substantive issue. Again, you have the 

paper on this. This is issue number one total and 

permanent disability discharge. I'm going to ask 

everyone who's not at the main table at this time to 

please turn off their cameras. Alright, Jennifer, can I 

turn it over to you?

MS. HONG: Yes, thank you, Kayla. I'm 

happy to jump into our first issue. Total permanent 

disability discharge. This is, excuse me, as you'll 

notice, a 21 page document of proposed regulatory text. 

It has grown because in sessions one and two, we 

provided direct loan text. Total permanent disability 

discharge affects all three loan programs make Perkins 

and FFEL. So we have provided the conforming language 

for those programs. But and I will go over those with 

you as well. But I'm going to ask if we could cue the 
26

Negotiated Rulemaking - 12/06/21

reg language for TPD, if we could start off where we 

left off on the direct loan program on page 16. That way 

we can flag the areas that have changed and then I can 

go back and talk us through the conforming changes that 

are made to Perkins and FFEL. Perfect, thank you, 

Vanessa. So if you, we've highlighted changes from 

session two to three, so if you want to go ahead and 

scroll down to page midpoint page 17 under romanette 3. 

We have added a new C and this was one of the points 

that was brought up at the last session, and we've 

discussed this in greater detail with with Bethany is 

the inclusion of disability onset date of five years 

prior. So we have included that language. I'll just read 

it out loud under C, the borrower, let me read the 

preceding language. So we have under romanette 3, an SSA 

benefit planning query or BPQY or an SSA notice of award 

or other documentation deemed acceptable by the 

Secretary, indicating that, A, we talked about the 

qualification documentation for SSDI and SSI, B, is the 

inclusion of language that the next schedule disability 

review will be within three years and that the 

borrower's eligibility for disability benefits in the 

three year review category category has been renewed at 

least once, thereby meeting the five year statutory 

requirement. And then again, C is the new language that 
27

Negotiated Rulemaking - 12/06/21

we've included to encompass that a borrower has a 

disability onset date for SSDI or SSI of at least five 

years prior or has been receiving benefits for at least 

five years prior to the application for TPD. And then 

what follows just minor technical reordering changes for 

D. And E, D is the compassion allowance program. And E 

is for retirement benefits. So that is the major 

substantive change. If you go to page 18 and 19, the 

highlighted just is a technical adjustment to ensure 

that we're cross-referencing everything under romanette 

3. In other words, all the documentation that we are 

accepting or TPD discharge. Lastly, on page 21, the 

highlighted language under discharge without an 

application. Again to conform with everything under 

paragraph B2 romanette 3 to include the new Addition of 

the disability onset five years prior. Please do keep in 

mind, however, that we have not we have not gotten 

confirmation if and when we can use disability onset 

date for purposes of auto discharge and I want to make 

that very clear. So that the language is there to 

provide it when it does become available but we we don't 

know and we don't know how far into the future we will 

be able to get those data. Now, and thank you, Vanessa, 

for bearing with me, I'm going to ask that we go back to 

page one. So now that we captured the major substantive 
28

Negotiated Rulemaking - 12/06/21

change, which is really the inclusion of the five year 

prior, I just want to point out that we've made 

conforming changes in the Perkins loan program. So and I 

can't go through these quickly. On page two, if the 

inclusion of the language for certified nurse 

practitioner, physician's assistant or licensed 

certified psychologist. Again, BPQY, three years plus 

renewal again, the disability onset date of five years 

prior compassion allowance and retirement, and again all 

through pages three, four and five conforming language 

to reflect those changes all through pages six and 

seven. I'm happy to if you if you noticed anything and 

you want to flag that, I'm happy to take questions, but 

I don't want to, it's basically confirming language all 

the way up to page eight, which is a FFEL loan program 

regulatory language. Again, I'll direct you to page 

nine, we've included everything that we've included 

under direct loans and Perkins. Page 10, we've flagged 

the change regarding the disability onset date. 

Conforming changes throughout to reflect certification 

by physician, nurse practitioner, proficient physician's 

assistant or licensed psychologist, and conforming 

changes throughout. All the way through the FFEL 

language or through page 15. So that is TPD. Like I 

said, if you had any discrete or technical issues as you 
29

Negotiated Rulemaking - 12/06/21

look through the regulatory text, I'm happy to answer 

them. If we've made any minor technical errors. We're 

happy to address those.

MS. MACK: Okay, let us know if you 

have any clarifying questions or comments. Bethany, 

please.

MS. LILLY: I want to thank the 

Department for adding this, even if it is an automatic 

right now or can't be in the future, I think this will 

dramatically help beneficiaries who can't access some of 

the other documentation that is authorized provide 

evidence that they meet this eligibility criteria. And I 

think this is a great improvement. I will just flag one

small typo for all, in C, it says at Least five years 

prior to the onset date, but it then says A least five 

years prior for receiving benefits. So you might just 

want to make that an at rather than an A. But aside from 

that, we're very pleased to see this. Thank you so much 

for doing that. We're we're really happy with this 

language.

MS. MACK: Jennifer, let me know, do 

we want to make a live edit here to add that T? I've 

flagged it, I, Vanessa can you can you throw that T in 

there on page 17 and highlight? We could do it 

simultaneously, fielding questions for. Yeah, the latter 
30

Negotiated Rulemaking - 12/06/21

part of that sentence for at least five years. Thank 

you.

MS. MACK: Okay, thank you. Jaye, 

please go ahead.

MS. O'CONNELL: So thank you for the 

FFEL regulations, just I believe a technical correction. 

I'm on page 13 the bottom, so you struck seven, which 

pertain to the three year conditional period. So then I 

think there's a renumbering eight becomes seven, I think 

nine wasn't included here, but that's our VATPD and then 

so on. So I just wanted to raise that.

MS. MACK: Okay. Thank you, Jaye.

MS. HONG: Thank you for that. So, 

Vanessa, real quickly if you want to, we basically 

skipped over seven, is that is that right, Jaye?

MS. O'CONNELL: Yes, yeah seven, which 

makes sense, and so eight becomes seven.

MS. HONG: Thanks for catching that. 

So on page 14, Vanessa, oh, you got it? Okay, she's a 

step ahead of me.

MS. O'CONNELL: And then you have 

there's a there's a section nine that wasn't included 

here because there were no changes, I believe, for 

VATPD. Is 10 all new or that I was a little confused 

about, but I could just be looking at the wrong version 
31

Negotiated Rulemaking - 12/06/21

of regs. But I have no concerns, I just I think 10 is 

now 9.

MS. HONG: I think that's right, and 

we'll just double check that internally, but we could go 

ahead and make that change for 10 and 9. 10 is not all 

new. Only the only the red line is new.

MS. O'CONNELL: Only the red line. 

Okay, thank you.

MS. HONG: Thank you.

MS. MACK: Thank you Jaye and 

Jennifer. Really quickly, I want to note Carol is in for 

proprietary institutions, Will is in for federal family 

education loan lenders and or guarantee agencies, and 

John Whitelaw is coming to the table for groups 

representing individuals with disabilities. Justin, 

please go ahead.

MR. HAUSCHILD: Thanks so much. 

Actually, it was just going to comment on the red line 

on 10 there, but also paragraph D. More broadly, the 

discharge without an application provision throughout 

the language. I wanted to thank the Department for 

making clear how they intend these provisions to 

operate, so you'll probably be hearing similar thanks as 

we go through some of the other text so thank you.

MS. MACK: Okay, thank you, Justin. 
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Negotiated Rulemaking - 12/06/21

Any other comments or questions from the committee? 

Persis, please.

MS. YU: Yeah, I just wanted to echo 

the appreciation of Justin and Bethany. I think the 

changes with the Department is major in the TPD are 

going to do huge things for the the borrowers that we've 

worked with, in particular, eliminating the monitoring 

period, which I realize is a week one issue, but is was 

a very big barrier for many of the people to actually 

see the relief, as well as some of the more technical 

elements of the Department is changing, including the 

allowing signatures by a wider range of medical 

professionals. That is going to have a huge impact. So 

we are very appreciative that along with the automation, 

because as with all things just carrying forward this 

James, automating as much as possible is hugely 

important. So thank you.

MS. MACK: Alright. Thank you, Persis. 

Carol, please.

DR. COLVIN: A little bit of a concern 

on number six on page five. As I mentioned in a prior

session with the reinstatement of discharged loans, if a 

new teach grant or direct loan is taken out within three 

years after the date of discharge. As we're all aware, 

the process of being approved for disability is lengthy 
33

Negotiated Rulemaking - 12/06/21

and then followed by the process of the TPV discharge. 

So this could leave a disabled individual unable to 

rejoin society on another career after seeking to attain 

a career focused education. Some sort of training or 

certification that might be eligible for teach grant, or 

for which a student might need to use federal direct 

student loans in order to return to school or to receive 

that training. It just seems like an unreasonable amount 

of time to keep a disabled individual from being able to 

feel as if they can rejoin society, have purpose, be 

functional in a different career. And most schools have 

a process of confirming with students after they 

received the TPD discharge that they have the approval 

of their primary caregiver to enroll in school and 

specifically in that career field for which they are 

seeking an education, and that they would be viable in 

that industry and able to perform and be successful 

considering that disability. And schools typically are 

counseling students to let them know that future 

discharge of loans would most likely not be eligible 

unless there is an additional disability that that takes 

place. Typically, these students are already working 

with a rehab counselor, occupational therapist or 

another professional and are approved for coming back 

into some different type of program or career field. And 
34

Negotiated Rulemaking - 12/06/21

a special concern are veterans that are working with 

rehab counselors that have possibly received a TPD 

discharge for a prior career field or approved to come 

back into one for which they would be eligible for teach 

grant. I know that that wouldn't make them disqualified 

for VA benefits, but I would hate to discriminate 

against a veteran and not allow them to be eligible for 

teach grant which would then cause that reinstatement 

alone. So my suggestion would be a standardized process 

for reporting exception that would allow for the 

awarding of teach grant or new direct student loan any 

time after the TPD discharge, with the approval of a 

health care professional for the program of enrollment 

that states and recognizes the viability of the career 

choice for the student given their disability. That 

would not cause a reinstatement of a TPD discharge, but 

would disqualify a current loans or future loans from 

being able for discharge or being eligible for discharge 

unless the student becomes further disabled and unable 

to function in the new career field.

MS. MACK: Okay, thank you, Carol. 

Jennifer I see your hand.

MS. HONG: Yes, I want to get back to 

Carol, but before that, it just occurred to me why Jaye 

may have been confused and I just wanted to point out 
35

Negotiated Rulemaking - 12/06/21

again the auto discharge language, remember, we just 

published in August. So I don't even know if those have 

been codified in the ECFR. So that may be why you didn't 

see it Jaye. But that is the current regulatory language 

is is the auto discharge, but that wasn't published 

until August our final rule for auto discharge. To 

Carols point, remember the veterans, the VA, the 

veterans are not subject to reinstatement, so they and 

as you just mentioned, so long as they have a physician 

certification and they can demonstrate their eligibility 

to withdraw those loans, then and certify that they 

would be paying them back, that they would not be 

subject to discharge unless their condition worsens. 

Their loans won't be instated, at least for the 

veterans.

DR. COLVIN: There's also a concern 

for other students as well. That's a significant 

population.

MS. MACK: Great. Thank you, Jaye, 

thank you, Jennifer. I misspoke earlier, it's actually 

Jaye at the table for federal family education, loan 

lenders and or guarantee agencies. So for the record, 

Will is not at the table, but Jaye is. John, please go 

ahead.

MR. WHITELAW: Thank you. Just one 
36

Negotiated Rulemaking - 12/06/21

clarification, I just wanted to make sure I understood 

what I think Jennifer said, which is while there is no 

currently an automated process for folks who meet the 

five year rule, or the five year time limit, the current 

process would be you apply and you show documentation 

from Social Security that is acceptable to the 

Department of Education that you need that requirement 

and then you get the loan forgiven. I just want to make 

sure I understand that that's what her limit was on the 

automation part and that this is in fact a full blown 

new substantive category of eligibility subject to 

possible automation, depending on what the Department 

and SSA can come up with. But automation is not is not 

sort of really the subject of this rule other than in 

the bigger general sense. And then with that aside, I 

want to echo what Bethany said and that we are extremely 

pleased by the Department's willingness and enthusiasm 

to expand the groups of folks who meet the statutory 

definition and who were excluded previously by basis of 

not fitting the right Social Security labels. And we 

think that this is a significant improvement in that 

regard, and we look forward to working with the 

Department to be creative about how to automate those. 

And we also look forward to working with the Department 

to improving the physician certification form, which we 
37

Negotiated Rulemaking - 12/06/21

understand the nitty gritty of the form is not the 

subject of this rulemaking, but we do anticipate that we 

will have ongoing discussions with the department once 

all is said and done about making that form user 

friendly for people with disabilities. And that's pretty 

much all I have to say.

MS. MACK: Thank you, John. Jennifer, 

did you have something on that?

MS. HONG: Yes. Just to affirm that I 

agree with your characterization of it John. We we need 

to have those data available and provided to us by SSA, 

by way of agreement and for us to be able to auto 

discharge. However, we will accept that as part of the 

application provided by the borrower. That's what this 

proposal codifies.

MR. WHITELAW: I just wanted to make 

sure I understood properly. Thank you so much.

MS. MACK: Thank you, John. Jeri, 

please.

MS. O'BRYAN-LOSEE: Hello, everyone. 

Again, I just want to echo the thanks for the changes 

and the amount of people that it's going to affect. I 

just want to clarify one thing. This will not help 

anybody in a spousal loan, correct, if one person 

becomes disabled?
38

Negotiated Rulemaking - 12/06/21

MS. HONG: Right, it's the borrower 

that has to demonstrate the disability.

MS. O'BRYAN-LOSEE: Okay. I believe 

submitting a letter from one of my constituents that the 

the one the primary borrower would have qualified under 

the cancer certification after Agent Orange exposure, 

but his wife is was not, and so they were denied the 

discharge because of that spousal loan. So just a 

reminder about that, if that's not covered.

MS. MACK: Thank you, Jeri. Bethany, 

please.

MS. LILLY: So I actually, again, 

really appreciate everything the Department has done 

here, but to Carol's point, because I think that this is 

something that I certainly did a lot of thinking about 

when we started out these negotiations. And one, I would 

just say the VR system is that they are required under 

law to pay for education services that people who are in 

vocational rehabilitation are supposed to be receiving. 

They don't often, but that is something that we, our 

system is technically supposed to do. So I would 

actually say this as much access to further educational 

opportunities for people with disabilities is something 

that VR is on the hook for, not the Department. And 

that's something that I would actually argue VR should 
39

Negotiated Rulemaking - 12/06/21

be taking a look at rather than the Department just so 

Carol is aware of that. And secondly, I don't disagree. 

I think the the statutory authorization that the 

Department has on this point is kind of an interesting 

discussion because it is a may authority rather than a 

shell authority. I can drop the kind of citations in the 

chat, but I really do think I mean. I do think this is 

more of a VR problem than a Departmet problem for what 

it's worth. I don't know that that helps in this 

context. And I mean, I'm certainly happy to revisit if 

we see problems popping up with people wanting to take 

advantage of further educational opportunities and that 

not being possible given all of this. But I would really 

direct more of my complaints on this to the VR system.

MS. MACK: Okay, thank you, Bethany. I 

appreciate all of the comments from the group now that 

we have walked through total and permanent disability 

discharge. I'm going to suggest that we take an official 

consensus check on what has been proposed in this paper 

to meet the request of the group. What I would ask is 

that everyone hold up their thumb and I will read aloud 

your name and the station of your thumb so that it does 

in fact, go into the transcript as requested. So please 

hold them high and in front of the screen and hold them 

up while I review all of the thumbs for purposes of the 
40

Negotiated Rulemaking - 12/06/21

transcript. I'll be looking for 18 thumbs. Daniel, 

thumbs up. Noelia, thumbs up. Jeri, thumbs up. Persis, 

thumbs up. Jennifer, thumbs up. Heather, thumbs up. 

Dixie, thumbs up. David, thumbs up. Bobby, thumbs up. 

Jaye, thumbs up. Justin, thumbs up. Misty, thumbs up. 

Marjorie, thumbs up. Carol, thumbs up, Joe, thumbs up. 

Bethany, thumbs up. Michaela, thumbs up. Anne, is it 

your intent to express a thumb on this particular issue?

MS. PRECYTHE: No.

MS. MACK: Then we have all thumbs up. 

The committee is in consensus and you have reached an 

agreement on total and permanent disability discharge. 

Congratulations to the committee. Alright. What I would 

suggest is that we move into our next issue, if we are 

prepared to do that Jennifer, I'm going to turn it over 

to you to walk us through closed school discharge.

MR. BARKOWITZ: May I, before we 

begin, may I ask for a caucus? I need a brief caucus. 

I'm hoping I'd like to have a caucus with accrediting 

agencies and preparatory institutions on this issue. And 

I'd like to invite the fed negotiator in the other 

negotiator in for a brief part of that caucus after we 

have a moment as proprietary institutions, financial aid 

administrators, accrediting institutions. Am I missing 

anyone Heather in that piece? No, so if we can have the 
41

Negotiated Rulemaking - 12/06/21

three of us and then I would like to invite once we're 

on the same footing, I'd like to invite the Fed 

negotiator Jennifer to join us as well.

MS. MACK: Alright. At this time, what 

I'm going to do while the FMCS team works with the 

technology to set up this particular caucus, I'm going 

to ask that we end the live streaming so that we can 

maneuver these things and then we will come back to 

livestreaming when we were all returning to the main 

table. Can you announce when we are no longer live. 

Okay. Thank you all for your patience and your work 

during that caucus time, we are now back and are going 

to return to the issue of closed school discharge before 

we do, I do want to acknowledge Suzanne Martindale on 

behalf of state higher education executive officers and 

Josh on behalf of legal aid at the table. Jennifer, can 

I turn it over to you to begin the conversation around 

closed school discharge?

MS. HONG: Yes. Thank you, Kayla. If 

we could go ahead and queue closed school discharge 

language. Just like TPD, we came to with direct loan 

language only under sections one and two. We have gone 

back and made substantial changes, substantive changes, 

to reg text. And we've also provided Perkins and FFEL 

language as well. So why don't I do the same thing and 
42

Negotiated Rulemaking - 12/06/21

start on page 15 with direct loan language so I can 

point out the substantive change and then we can field 

any questions. In brief, when we go through the direct 

loan language, you'll notice a lot of deletions. And 

that is because many committee members had concerns 

regarding the concept of comparable program and the 

enrollment. So we've basically eliminated the provisions 

having to do with comparable program. And what you see 

on page 16 and 17 in the highlight is the only condition 

remaining then is the completion of a teach out 

agreement. So that is that's the only thing that's left. 

And on page 17 the changes are reflected there on or 

after July 1st, 2023, state that the borrower did not 

complete an institutional teach out plan performed by 

the school or teach out agreement at another school 

approved by the school's accrediting agency and, if 

applicable, the school's state authorizing agency. So 

that is that under, that's the one change. Next change 

is under exceptional circumstances, and this was pointed 

out by legal aid last time was the inclusion of 

judgments, and we had pointed to the finding language. 

They had provided some alternate language to ensure that 

judgments were included. So we've included that under 

paragraph six on page 22. I'm having Vanessa bounce 

around everywhere again, so I'll just point out very 
43

Negotiated Rulemaking - 12/06/21

quickly if we go back to page 1 under the Perkins loan 

program language, these changes are reflected in the 

comment bubble on page 3. You'll see that we've removed 

the conforming language, remove language regarding reenroll, incomparable program criterion, retaining only 

completion of a teach out agreement. That's an Perkins'. 

And then, again, the insertion of the language on page 6 

of school violated state or federal law related to state 

or federal court judgments. Also then that's followed by 

the FFEL language. As we're going through as we were 

going through the FFEL language, just of note and that's 

the note on page 8, there was quite a bit of kind of 

cleaning out that needed to happen with the FFEL regs, 

they haven't been updated and for some reason there 

there were some paragraphs missing. So that's just a 

reassertion of existing language. For some reason, it 

had fallen off, which is technical in nature. And again, 

on page 14 FFEL language, you could see the removal of 

reenrollment comparable program criteria and the 

inclusion of state or federal court judgments under 

exceptional circumstances. So I will stop right there 

for discussion.

MS. MACK: Alright, Daniel, please.

MR. BARKOWITZ: Sorry, dropping my 

pen. I have a couple of items. One is technical and 
44

Negotiated Rulemaking - 12/06/21

substantive. Jennifer, there are a couple of places in 

the conforming language where the word may is used when 

it comes to the Secretary discharge as opposed to shall 

or will. It appears there in the Perkins as well as the 

FFEL section. I may be having some internet problems. Am 

I having internet problems? I'm back. So could we look 

at those and let us know if that's intentional or just 

an oversight? I'll give you the example if you go to 

page 2 number 3 on page 2. Let's see. Thank you, 

Vanessa, sorry. Here we go the Secretary may discharge 

the borrower's obligation to repay. That doesn't seem to 

match the language of will earlier in the document. And 

then there's another one on page 14.

MS. HONG: So we'll flag those. They 

may be intentional, so I'm kind of hesitant to make 

those changes now, but we will have a look at them.

MR. BARKOWITZ: And then the 

substantive question and I'm just going to reiterate, 

first of all, thank you for allowing us some time in 

small group I think could help to advance the 

conversation. I still have a concern around the 

definition of what constitutes a closed school. Jennifer 

shared some sub regulatory guidance about when 

conditions constitute closed versus closed or not closed 

that the department uses. I'm advocating strongly for 
45

Negotiated Rulemaking - 12/06/21

that sub regulatory guidance to be promulgated in a much 

more public way so that institutions have a clear 

understanding of a further definition beyond simply 

what's in the regulatory guidance. So I don't know if 

you want to share anything about that Jennifer. That 

would be my strong recommendation if it can't be added 

as regulatory and it remains sub regulatory. Ideally, 

I'd like it actually in the regulation, but if that 

can't happen, then I think it needs to be very publicly 

and and demonstratively shared.

MS. MACK: Okay. Thank you, Daniel. 

Josh, please.

MR. SIEGEL: Thanks. So I want to 

start on the enrollment piece and just emphasize how 

appreciative the legal aid community is for that change. 

It is a really significant change that's going to yield 

a lot of relief to a lot of people. And so we very much 

appreciate that change. I do have two specific questions 

for the Department on it. The first is whether the 

department has considered implementing the auto 

discharge provisions early? Particularly given just the 

amount of time it's likely to take to effectuate the 

provisions that are in here. If the department hasn't 

considered that yet, we would urge the department to do

so. And then the second is for those students in 
46

Negotiated Rulemaking - 12/06/21

particular who attended pre 2014, is the Department in 

implementing that's going to be using any presumptions? 

And by that, I mean, we know that most schools pre 2014 

didn't offer teach out programs that would satisfy the 

definition here. And so I'm curious if what the 

department has considered utilizing any presumptions as 

it actually effectuate these proposals, which just again 

reiterate, we very much appreciate.

MS. MACK: Thank you, Josh. Joe, 

please.

MR. SANDERS: Hi. Thanks, Kayla. Can 

everyone hear me, is my mic okay?

MS. MACK: We can hear you just fine.

MR. SANDERS: Okay, great. I agree 

with Josh that the elimination of the reenrollment 

requirement is a big plus for students, and so thanks to 

the Department for that. However, my concern here 

remains the pegging of eligibility to a specific time 

frame, the 180 days. Again, what we see is when a 

closure happens, there is a lot of confusion among 

students, people are emotional, they're disappointed, 

they have a huge investment in time, in addition to the 

money that can't be made up. And so many people upon 

hearing that the school is closing will withdraw at that 

point. In the event that it's outside the 180 days, a 
47

Negotiated Rulemaking - 12/06/21

lot of people are losing eligibility there. And so I had 

submitted language in the first session with a potential 

fix here for pegging eligibility to when the closure is 

announced, because that's when students are going to 

make decisions. So two points on that, one, query why 

the Department has been resistant to institute that 

change. And then, two, although I think the exceptional 

circumstances are an inadequate fix to this problem 

because they require action by the Department. But I 

would like it if the Department can provide an 

explanation of exceptional circumstance number seven. 

Which is on page 14. The Teach out of the students 

educational program exceeds the 180 day lookback period 

for a closed school discharge. I think I know what that 

means, but I think an explanation here might help 

understand whether that would cover the fact pattern 

that the AGs are concerned about.

MS. MACK: Okay. Thank you, Joe. Jaye, 

please.

MS. O'CONNELL: Thanks. So I have just 

a few questions on the FFEL regulations. So in terms of 

the teach out requirement, we just wanted to verify 

under the FFEL program if it's the guarantors that are 

making those approvals, do they just accept the 

borrower's certification on the application? We 
48

Negotiated Rulemaking - 12/06/21

understood it, but we wouldn't have data to validate. We 

were wondering also about the triggering event also 

related to the teach out provision that's on or after 

7/1/2023 and what is that referring to? Is it 

applications received? Is it school closures on or after 

that date? So it's interested in any clarity there. And 

then for the no application, am I correct in assuming 

those would be that Department would be notifying the 

guarantor in those situations, those automatic 

discharges? Just making sure I understand that in the 

context of our program. Thank you.

MS. MACK: Thank you, Jaye. And we'll 

have one last comment before we go right into lunch 

Jessica, please.

MS. BARRY: Sure, thank you. I still 

have significant concerns about the proposal that's been 

put forward. The Department proposes to define a closed 

school to include a school that has ceased to provide 

educational instruction for most of its students. This 

means that students attending schools that haven't 

closed are eligible for closed school loan discharges. 

Institutions add and discontinue program offerings all 

the time in response to student demand and changes in 

the labor market. Programmatic innovation should be 

encouraged so that institutions continuously improve 
49

Negotiated Rulemaking - 12/06/21

offerings to help students succeed in the workforce. The 

Department's proposal could be particularly damaging to 

small institutions like mine that want to switch up 

program offerings but only offer three or four programs 

total. Instead of starting new programs and 

discontinuing old programs, some colleges may keep old 

programs afloat simply to avoid school loan liability. 

The definition or the Department's definition of a 

closed school, also departs from the statutes plain 

meaning in the Higher Education Act. HEA says that if 

the borrower is unable to complete the program in which 

such student is enrolled due to the closure of the 

institution, then the Secretary shall discharge the 

borrower's liability on the loan. Get relief under the 

statute, the school must have close. But here the 

department is proposing awarding closed schools loan 

relief to borrowers attending schools that are still 

open. The Department's proposal is contrary to the plain 

language of the HEA. The department has made a 

significant shift away from the idea that if a student 

enrolls in a comparable program, they should not get 

loan relief. This principle has been ingrained in the 

Department's regulations for decades. Yet the department 

has seemingly abandoned it overnight without 

justification. The Department's new proposal would 
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provide loan discharges to all students who attend a 

school that closed except except those that completed 

teach out agreement. This creates a perverse incentive 

for students not to enroll in a teach out program and 

transfer to another school. Indeed, it's probably more 

rational for a student to transfer than to participate 

in teach out. Teach out arrangements or generally 

positive for students, and I'm shocked and disappointed 

that the department is proposing a policy that would 

make it financially irrational for a student to enroll 

in a teach out and instead of transferring. If a student 

is close to completing their program when the school 

closes and is able to transfer all their credits, they 

may only need to take one or two classes at the new 

school. But they can Still be eligible for full student 

loan relief under the proposal. This creates a windfall 

for students, which will primarily be paid by taxpayers. 

Lastly, and I'll be quick, the Department seeks to make 

these changes to the close school loan liability 

retroactive. Department has continually oscillated on 

this question of retroactivity during this negotiated 

rulemaking, despite clear opinions from the Supreme 

Court that state regulations may only be applied 

prospectively unless Congress has specifically 

authorized retroactivity. No mention of retroactivity 
51

Negotiated Rulemaking - 12/06/21

and section 437C of the HEA, which authorizes school 

closed loan discharges. Thank you.

MS. MACK: We are right at the lunch 

hour, Heather and Joe, I do see your hand, so we will 

start with you as soon as we come back. I hope that you 

all have a great lunch and we will again go live and 

return at the top of the hour. Alright, we will see you 

all then. Thank you.
52

Negotiated Rulemaking - 12/06/21

1 Appendix

2 Department of Education

3 Office of Postsecondary Education

4 Zoom Chat Transcript

5 Affordability and Student Loans Committee 

6 Session 3, Day 1, Morning, December 6, 2021

7

8 DISCLAIMER:

9 Note: The following is the output of transcribing from a 

10 recording. Although the transcription is largely accurate; 

11 in some cases, it is incomplete or inaccurate due to 

12 inaudible passages or transcription errors. It is posted as 

13 an aid to understanding the proceedings at the meeting, but 

14 should not be treated as an authoritative record.

15

16 From jennifer soza to Everyone:

17 Good morning

18 From Jeri O'Bryan-Losee (P) Student Borrowers (she her, 

19 they) to Everyone:

20 I keep saying "+1" when I agree and people are looking 

21 at me like I have 2 heads

22 From Jessica Barry, Proprietary (P) to Everyone:

23 My alternate, Carol, will negotiate the first issue 

24 this morning.

25 From Will (A) - FFEL Guarantors/Lenders to Everyone:

26 Hope I didin't offend my Central FL peeps !!

27 From Will (A) - FFEL Guarantors/Lenders to Everyone:

28 it is still my home ! LOL

29 From Stan Andrisse to Everyone:

30 Good morning, Everyone!
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Negotiated Rulemaking - 12/06/21

1 From David Tandberg (P) - State hi ed agencies to 

2 Everyone:

3 We've had steady highs in the 70s for the past several 

4 weeks here in Colorado (we're not happy about it).

5 From Michaela [P] Ind Student to Everyone:

6 Ayyy Welcome Anne!

7 From Daniel (P) - Fin Aid Administrators to Everyone:

8 Welcome!

9 From Will (A) - FFEL Agencies to Everyone:

10 Welcome Anne and we are happy to have you. Holler if 

11 anyone of us can help you this week

12 From Bethany (P) - Disability (she / her) to Everyone:

13 Welcome, Anne!

14 From David Tandberg (P) - State hi ed agencies to 

15 Everyone:

16 Welcome, Anne!

17 From Dixie (P) Dependent Students to Everyone:

18 Welcome, Anne!

19 From Stan (A) Ind. Students to Everyone:

20 Welcome, Anne!

21 From Heather (P) - Accrediting Agencies to Everyone:

22 Welcome, Anne!

23 From Anne (P) - State DOCs to Everyone:

24 Thank you everyone. I look forward to hearing the many 

25 discussions.

26 From Brady FMCS Facilitator to Everyone:
54

Negotiated Rulemaking - 12/06/21

1 broberts@fmcs.gov

2 From Brady FMCS Facilitator to Everyone:

3 https://www2.ed.gov/policy/highered/reg/hearulemaking/

4 2021/index.html

5 From Bethany (P) - Disability (she / her) to Everyone:

6 +1 to Persis and David

7 From Justin (P) - Servicemembers and Veterans to 

8 Everyone:

9 +1 to Persis and David

10 From Michaela [P] Ind Student to Everyone:

11 +1

12 From Jeri (P) Student Borrowers (she her, they) to 

13 Everyone:

14 +1

15 From Joe, P, State AGs to Everyone:

16 I support recording up, sideways, or down on consensus 

17 checks

18 From Bethany (P) - Disability (she / her) to Everyone:

19 Subbing out for John

20 From Will (A) - FFEL Agencies to Everyone:

21 For the record, WIll did not step up to the table. My 

22 error - this comment is for the record. Jaye has been 

23 at the table this entire discussion.

24 From David Tandberg (P) - State hi ed agencies to 

25 Everyone:

26 I share John's and Bethany's enthusiasm.

27 From David Tandberg (P) - State hi ed agencies to 
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Negotiated Rulemaking - 12/06/21

1 Everyone:

2 Yeah!!!!

3 From Jessica Barry, Proprietary (P) to Everyone:

4 I am subbing back in for Carol.

5 From Stan (A) Ind. Students to Everyone:

6 Yay Committee! One consensus down.

7 From Josh (A), Legal Aid (he/him) to Everyone:

8 I’m subbing in for legal aid

9 From Persis (P), Legal Aid (she/her) to Everyone:

10 Josh will be joining for legal aid for issue 2

11 From Will (A) - FFEL Agencies to Everyone:

12 I missed the update - can you add to chat? Looks like 

13 we may be out for a bit?

14 From Will (A) - FFEL Agencies to Everyone:

15 Thanks Brady

16 From David Tandberg (P) - State hi ed agencies to 

17 Everyone:

18 Once we're back at the table, my alternate, Suzanne, 

19 will be replacing me for a bit.

20 From Josh (A), Legal Aid (he/him) to Everyone:

21 Can we shorten lunch by 15-20 minutes today?

22 From Daniel (P) - Fin Aid Administrators to Everyone:

23 Better link - https://bombas.com/collections/pride24 collection?campignid=1392646028&adgroupid=75642912927

25 From Daniel (P) - Fin Aid Administrators to Everyone:

26 Oops - that was private!
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Negotiated Rulemaking - 12/06/21

1 From David Tandberg (P) - State hi ed agencies to 

2 Everyone:

3 Once we're back at the table, my alternate, Suzanne, 

4 will be replacing me for a bit.

5 From Marjorie (P), 4 Yr Public Inst. (she/her) to 

6 Everyone:

7 Removal of the reenrollment language is appreciated. 

8 ���

9 From Rachelle (A) 4 year publics to Everyone:

10 +1

11 From Carol (A)-Proprietary to Everyone:

12 +1 Daniel

13 From Michaela [P] Ind Student to Everyone:

14 Jessica..Are these places not offering teach outs? Do 

15 you change programs on your students and make them 

16 change?