Negotiated Rulemaking 10/4/2021

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DEPARTMENT OF EDUCATION

OFFICE OF POSTSECONDARY EDUCATION

AFFORDABILITY AND STUDENT LOANS COMMITTEE

NEGOTIATED RULEMAKING SESSION 1, DAY 1, MORNING

OCTOBER 4, 2021

On the 4th day of October, 2021, the

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

12:00 p.m., before Pam Flores, 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: Thank you, and good morning, 

everyone. My name is Kayla Mack and I am a federal facilitator 

with the Federal Mediation and Conciliation Service. It is my 

very distinct pleasure to welcome you all today to the United 

States Department of Educations Negotiated Rulemaking, through 

which the Affordability and Student Loans Committee will propose 

student financial assistance regulations. 

In effort to welcome you all, the department, 

the committee negotiators, advisers, and the public logging in 

and viewing our session, I would like to turn it over to Ms. 

Jennifer Hong, the department’s federal negotiator. 

MS. HONG: Thank you, Kayla. Good morning 

and welcome to all of you joining us today and to the committee 

members and alternates seated around our 

virtual negotiating table. 

My name is Jennifer Hong and it is my

pleasure to welcome you to the U.S. Department of Education’s

first ever virtual negotiated rulemaking session. This is the 

Affordability and Student Loans table and I’d like to welcome my 

colleagues around the table, representing various 

constituencies who have been nominated by their peers and 

selected the federal student aid programs, authorized under

Title IV of the Higher Education Act of 1965 as amended.

You may recall we kicked off our negotiated rulemaking process 
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through our public hearings and solicitation of comments back 

in June when we heard from the public on various topics 

concerning affordability and accountability to federal student 

aid programs. We appreciate all of those who engaged with us 

through that process, shared your concerns and provided

suggestions. Based on your feedback, we have formed

this committee to focus on affordability and the student loan 

programs to include borrower discharges, public service loan 

forgiveness, borrower defense to repayment, interest 

capitalization and income-driven repayment of student loans. 

There will be a second committee that will focus on 

institutional and problematic eligibility, which will convene 

next year.

We have a robust agenda for this 

table on affordability and student loans. The [inaudible] 

issue papers describing concerns we’ve identified in the 

programs and in some areas proposed solutions for resolving 

these concerns through regulation. To the committee members, 

there are many issues we would like to discuss with you and 

specific questions to generate some ideas and potential

solutions. These issue papers are available online.

You can find our negotiated rulemaking website at ed.gov 

under “How do I Find” listed as higher education

rulemaking. In that link, the issue papers listed 

under session 1. 
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As I mentioned earlier, this is the

first time we’re attempting this virtually. We implore

your patience as we navigate this together. And without 

further ado, it is my pleasure to introduce our Under 

Secretary, James Kvaal, who will provide welcoming 

remarks. Under Secretary Kvaal was formerly President 

of the Institute for College Access and Success or 

TICAS, a research and advocacy nonprofit dedicated to 

affordability and equity in higher education. TICAS is 

nationally recognized for its research in policy 

recommendations on student debt. He also served in the 

Obama Administration as a Deputy Domestic Policy Advisor 

at the White House and Deputy Under Secretary at the 

U.S. Department of Education. Under Secretary Kvaal led 

efforts to cut student loan monthly payments, hold 

career colleges accountable for excessive debts and make 

community colleges tuition free. He helped organize the 

White House Summit on College Opportunity, which 

featured more than 100 college presidents and other 

leaders committing to actions to help more students 

graduate from college. He also has served in senior 

roles in the U.S. House of Representatives and the U.S. 

Senate. Please join me in welcoming Under Secretary 

Kvaal. 

MR. KVAAL: Thanks so much, Jennifer,
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and thanks everyone for being here. On behalf of Secretary

Cardona and the full team here at the Department, I Want to 

welcome you to the Department of Education’s first fully 

virtual -- I’m sorry, can you all hear me? Our first fully 

virtual negotiated rulemaking ever. We take this process 

really very seriously. We think the negotiated rulemaking 

produces the best possible regulations and it would not be 

possible without you and all of your hard work. So, thank 

you for being a part of it. 

President Biden and Secretary Cardona 

Have laid out an ambitious vision for how we can rebuild 

Our system of higher education around equity and student

success. And, over the last nine months, the 

Administration and Congress have made unprecedented

investments in colleges in this time of national recovery,

especially those inclusive colleges that are committed to

the mission of equal opportunity and affordability. And

Congress is now considering a round of substantial investments 

as we build back better. The Administration is also committed 

to attacking the generational problem of student debt and 

college affordability with ambitious new ideas. And we have 

pursued an unprecedented set of executive actions to address 

student debt. We have extended and expanded the pause on 

interest collections and repayment, saving borrowers billions 

of dollars a month. We have approved new groups of borrowed 
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offense claims and granted full relief to tens of thousands of 

others. We have protected borrowers with a total and

permanent disability discharged under national emergency

and issued a rule granting automatic benefits to hundreds

and thousands of those borrowers, so paperwork won’t stand in 

the way of relief that they need. And we granted additional 

closed school discharges to borrowers who attended one of the 

most notorious predatory institutions.

So, we are off to a fast start but there’s a 

lot more work to be done. Secretary Cardona and I

are committed to building a higher education system that

is a force for equal opportunity and economic success.

Too often, student debt stands between students and their

goals. So, we will seek to ensure that the programs and 

benefits authorized by Congress to help student loan

borrowers live up to their promises and root out patterns

of wrongdoing when colleges fall short. 

The rulemaking agenda is designed to 

Ensure that millions of borrowers holding student loans 

Today are able to repay or get relief on their loans and 

the future is even brighter for the next generation of 

borrowers. The work of this panel is also important in

addressing the disproportioned impact that student debt 

has on borrowers of color and low-income students. 

This is a high priority for the President and it’s my
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hope that the regulations developed here will move us 

closer toward improved student loan policies that will

help all borrowers and especially those that struggle

to repay. Specifically, your work on the Affordability 

and Student Loan Negotiated Rulemaking Committee 

will include discussing proposals to improve or restore

targeted programs and benefits such as the public service

loan forgiveness and discharges when a college closes or

when a borrower has a total and permanent disability. 

We will discuss ways to improve borrower defense to 

repayment so that borrowers have a path to relief when

their institution takes advantage of them and to give

borrowers their day in court by banning the use of 

predispute arbitration class action waivers. 

The committee will also discuss 

proposals to help borrowers repay their loans. This 

includes a new repayment plan tied to borrower’s income 

and prevents rise in balances by eliminating instances of 

interest capitalization when the department has discretion

to do so. A few months ago, Secretary Cardona stated

that the Department of Education’s primary responsibility 

is to serve students and borrowers. And to do that well 

means taking a fresh look at a range of regulations to 

make sure they are not creating unnecessary barriers but 

can, instead, ensure that institutions and programs serve 
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our students well. 

To this end, we’re excited to work with

you to develop a number of these regulatory provisions

that reflect the Secretary’s commitment. I also want to

acknowledge the Prison Education Program subcommittee

members whose work will soon get underway because this

topic differs slightly from the loans focused agenda

and given the importance of that issue, we wanted to

dedicate an entire subcommittee to recommend the best

path forward. With their help and yours, we will expand access 

and equity in educational opportunity for incarcerated students 

by establishing regulations that will help correctional 

facilities and institutions of higher education establish 

eligibility for programs.

For those of you who have followed past

rulemaking processes, you know already but we will learn as the 

process goes on and proposals will evolve, I want to emphasize 

that we’re entering these sessions with an open mind and the 

issue papers you have before you are a point of departure. We 

look forward to refining them based upon your expertise. The 

department staff will also make contributions on subjects like 

legal authorities, operational challenges and fiscal 

impacts and I’m confident we will emerge with a product

we can all be proud of. Because this is our first

virtual rulemaking, we know it may present some 
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technology challenges. We don’t anticipate any major issues

but please be patient if there are technical 

difficulties. On the bright side, virtual hearings

have expanded access for negotiators who might’ve had a hard 

time traveling to DC and through live streaming and posting all 

recordings, we hope to continue to ensure full transparency to 

the public. 

So, in closing, I wanted to say again 

thank you to the members of the committee and the subcommittee

and those of you in advisory roles for your willingness to help 

us strengthen these rules and I know it is a substantial 

commitment of time to do so. The full team here takes your 

work and your expertise very seriously. Your efforts to 

scrutinize these ideas and bring to bear the perspectives of 

the students, colleges and others affected by these policies 

will, without question, lead to a stronger final product. So, 

thank you. I also want to thank members of the postsecondary 

community who are watching and will continue to weight in

on these important issues. Your active participation is also 

an important part of the process. Finally, I want to thank the

many members of the Department of Education staff who have

worked to make these conversations possible, including Acting 

Assistant Secretary Michelle Asha Cooper and the staff of the 

Office of Postsecondary Education who are coordinating and 

leading these proceedings and work from across the Department, 
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including staff from the Office of Career and Technical 

Education, the Office of the General Counsel, Federal Student 

Aid, the Office of Planning, Evaluation and Policy Development 

and others from across the agency for all of the work that made 

today possible. So, with that, I will get out of your way and 

let you get to work. I do believe that your efforts will help 

us make colleges and universities the strong institution for 

equity and affordability that they have the potential to be. 

And really appreciate your hard work. Thanks very much. Bye. 

MS. MACK: Thank you Jennifer. Thank 

you Under Secretary Kvaal. I would like to move forward 

now with getting to know each and every one of you and

going through introductions. We first want to introduce

all of our Department of Education participations. We want to 

introduce our primary and alternate negotiators on the 

committee. We want to introduce the experts that were 

selected to serve as advisors to your committee. 

 And finally, we would like to

introduce our facilitation team from FMCS that includes 

myself and three of my esteemed colleagues. As mentioned 

before, and we’ve already heard from, the federal 

negotiator is Ms. Jennifer Hong. Jennifer, was there

anything else you wanted to share by way of introduction

to yourself?

MS. HONG: No, just, just to welcome 
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the committee and everybody around the table. My team 

works on all the issues that we’re discussing this week 

and [inaudible] policy and the Office of Post-secondary 

education -- really excited about some of the proposals and 

interested in hearing your ideas. 

MS. MACK: Alright. Thank you, Jennifer.

Also, we have several folks from the Department’s Office of 

General Counsel that I would like to hear an 

introduction from. First, Mr. Brian Siegel. 

MR. SIEGEL: I’m Brian Siegel. I’m the 

Assistant General Counsel for Postsecondary Education in

the Department’s Office of the General Counsel. I join 

Jennifer in welcoming everybody to this process, and I 

look forward to the discussion over this week and in future 

sessions. Thank you. 

MS. MACK: Alright. Department, I know that

we have a couple of additional folks from the General Counsel’s 

Office but I don’t see them here today for introductions. Is 

that correct?

MS. HONG: That is correct. So, there 

might be some musical chairs with Brian here as issues

arise. So, we, we’ll flag that when they come to the board 

so we’ll be sure we can introduce them.

MS. MACK: Nice. Sounds good. There are a

few additional Department of Representatives who are going to 
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wear a number of hats, particularly helping us share 

correspondence and information, screensharing, tracking 

language and so I want to welcome and invite an introduction 

from, from them because they will be very, very helpful to us 

in our efforts. First is Mr. Aaron Washington. 

MR. WASHINGTON: Hi, everybody. I will be

projecting my screen Tuesday afternoon, Thursday, and Friday in 

the case that you all have any regulatory language suggestions 

and I’ll also be one of the facilitators for the prison 

education program subcommittee set to start on October 18th. 

And that subcommittee will work to present a recommendation to 

the main committee to implement various changes in the 

regulation. Thank you. 

MS. MACK: Thank you, Aaron. We 

also have with us Ms. Vanessa Gomez. 

MS. GOMEZ: Good morning, everyone. So, I 

will be the one sharing my screen today and tomorrow morning, 

as well as Wednesday all day, and I also work with Aaron. We 

work in the policy development group and I’m happy to be here. 

 MS. MACK: Thank you, Vanessa. Department,

were there any other introductions that we needed to make this

morning? Seeing none, and let me know if that changes with ne

attendees. Let’s move to the Committee. So, I would like to 

now welcome and invite invitations from the members of our 

Affordability and Student Loans Committee. These negotiators 

w 
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have been nominated by the public and selected by the 

Department to represent 16 respective constituencies. For each

constituency, we will invite the primary negotiator and the 

alternate negotiator to briefly introduce themselves on behalf 

of their constituency group. So, first off, we have the 

constituency group of Accrediting Agencies. And I’d like to 

begin and welcome primary, Dr. Heather Perfetti. 

MS. PERFETTI: Thank you, Kayla. Can you

hear me? 

MS. HACK: Yes. 

 MS. PERFETTI: Great. Good morning,

everyone. I am Heather Perfetti, primary negotiator representing 

the constituency group of Accrediting Agencies. I am the 

president of the Middle States Commission on Higher Education 

and I was nominated to serve as a primary negotiator by the 

presidents of six other institutional accreditors who are 

members of the Counsel of Regional Accrediting Commissions, 

also referred to as CRAC. The chair and vice chair of my

commission also endorsed my nomination and I appreciate the 

opportunity to represent the constituency group of Accrediting 

Agencies. I have served as the president of the Middle States 

Commission since July of 2020 but I have served in a variety of 

roles, including president elect, senior vice president for 

legal affairs and chief of staff and where I began as a staff 

member with my commission in 2015, and as vice president for
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institutional field relations. I also have experience as a 

peer evaluator doing the work of accreditation while also 

supporting accreditation activities as a faculty member and 

chief academic officer across a number of institutions 

throughout my professional career. I look forward to 

contributing to this process and working with all of you. Thank 

you. 

MS. MACK: Thank you, Heather. The

alternate for that constituency is Dr. Michael McComis.

MR. MCCOMIS: Oh, thank you. Good morn --

good morning, all. My name is Michael McComis. I’m the

executive director with the Accrediting Commission of

Career Schools and Colleges. And am looking forward to

assisting Heather as the primary negotiator. I have 27 years 

of experience in accreditation serving as the executive 

director most recently for ACCSC over the last 13 years. And I 

have significant experience going through this process as well. 

This is my sixth opportunity to serve as a negotiator and so 

I’m, I’m happy to be able to do that in a way that supports the 

Department’s aims, all the other negotiators here as well, and 

Health specifically. So, thank you and good morning. 

MS. MACK: Thank you. Our next constituency 

group is Dependent Students and for that we have primary, Ms. 

Dixie Samaniego. 

MS. SAMANIEGO: Hello, everyone. Good
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morning. My name is Dixie Samaniego and [inaudible]. And I’m 

the primary for Dependent Students and I’m currently a thirdyear political science major and [inaudible] study as minor at 

Cal State University Fullerton, and I also serve as the chief 

governmental officer of our Associated Students Incorporated. 

I also serve as a vice chair of legislative affairs for the Cal 

State Student Association that represents almost half a million 

higher education students in California. And was also nominated

by the Cal State Student Association with my nomination being 

cosponsored by TICAS and the Ed Trust. Thank you.

MS. MACK: Thank you. Next, we have

alternate Mr. Greg Norwood. 

MR. NORWOOD: Good morning from the 

wonderful State of Texas. My name is Greg Norwood. I am the 

Southern Education Manager for the Young Invincibles, a 

national nonpartisan nonprofit that seeks to elevate the voices 

of young adults in the political process while creating 

economic opportunity for persons 18 to 34 years old. I am the 

alternate for Dependent Students and, as one who matriculated 

through college as a dependent student, I think I can speak 

very well to what that looks like, how we can better that 

process. I’m looking forward to taking this journey with each 

of you, each of you. 

 MS. MACK: Thank you, both. Next, I’d like

to welcome the constituency group for Federal Family Education 
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Loan Lenders and/or Guaranty Agencies. First, we have our 

primary Ms. Jaye O’Connell. 

MS. O’CONNELL: Morning. I’m Jaye and I’m 

the director of compliance and collections with the Vermont 

Student Assistance Corporation. I was nominated by three 

of our trade associations, National Council of Higher Education 

Resources, Student Loan Servicing Alliance, and Education 

Finance Counsel. I currently serve on the board of the Student 

Loan Servicing Alliance and just celebrated my 30th year at

VSAC where I’ve worked with the loan program and we also

support a number of other, a number of other aspects of higher 

ed. financing and support for students in the State of Vermont. 

So, thank you. 

MS. MACK: Thank you. And our 

alternate for this constituency group is Mr. Will Shaffner. 

 MR. SHAFFNER: Thanks, Kayla. Hi, 

everyone. Welcome to our first session. This is exciting and 

it’s nice to see everybody. This is -- I’m sorry, my 40th year 

in higher education finance. I’ve worked at the University of 

Central Florida at the few lenders, guarantors, and I’m now the 

director of Business Development and Government Relations at

MOHELA. We are a servicer and an originator and owner of FFELP 

loans as well as [inaudible] service on behalf of other lenders 

in the private loan sector, and work with borrowers and 

families across the country. I was nominated by the National 
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Council of Higher Education Resources as well as the Education 

Finance, Education Finance Council, EFC. I serve on the board 

of EFC and I was on the board previously with [inaudible]. 

This is my second negotiation and I found the first one to be 

very educational, helpful, and I’m, I really am thrilled to be 

able to help in a small way or any way at all to help us reach 

consensus if at all possible and look forward to working with 

each of you as we tackle each of these topics. So, thank you, 

again. 

MS. MACK: Thank you, both. I want to

invite the negotiators for the constituency group of Financial 

Aid Administrators at Postsecondary Institutions to introduce 

themselves. First, our primary Mr. Daniel Barkowitz. 

MR. BARKOWITZ: Hi there, everyone. My name 

is Daniel Barkowitz and I am the assistant vice president for 

Financial Aid and Veterans’ Affairs of Valencia College. We 

are a community college with two-year and four-year degrees, a 

public college in the Orlando, Florida area. So, I have been 

nominated by NASFA. NASFA is the National Association of 

Student Financial Administrators, for this role. NASFA

represents over 28,000 student financial aid administrators 

nationwide and over 3,000 colleges and universities in career 

schools across the country. And NASFA’s members serve nine out 

of every 10 undergraduate students in the United States. 

Personally, I have a 30 plus-year history of working in 
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financial aid and student financing at a number of different 

institutions from large public to small private institutions. 

I have worked at a servicing company. I have worked also on 

the student lending side. So, I’m excited about the 

opportunity to discuss some lending issues over the coming 

weeks. I also serve currently as the treasurer for FLIP 

National. FLIP is the First-Generation Low-Income Student 

Partnership. It is a student centered, student led 

organization really focused on issues of concern to first-gen 

and low-income students and I’m, I’m pleased to have their

nomination to serve on the committee as well. And finally, I 

was nominated by [inaudible] in their role as two-year public 

community college representation. So, very excited to spend 

some time with you. This is my first time as a negotiator and 

I look forward to the conversations we’re going to have 

together. 

MS. MACK: Thank you. And the alternate for 

this constituency is Ms. Alyssa Dobson. 

MS. DOBSON: Hello and good morning, 

everybody. As stated, my name is Alyssa Dobson. I am the 

director of financial aid and scholarships at Slippery Rock 

University. Along with having a very unique name, we’re also a 

part of the State System of Higher Education in Pennsylvania. 

I hold several roles with our Pennsylvania Association of 

Student Financial Aid Administrators. I won’t bore you with 
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those details but they’re going to assist in, in advising 

through this process. I’ve been at the negotiating table 

before and I am excited to review the issues before us as I do 

think they’re some of the most important that face our students 

today. 

MS. MACK: Thank you, both. We’ll move on 

to the negotiators from our next constituency, which is FourYear Public Institutions and begin with our primary, Dr. 

Marjorie Dorime-Williams. 

DR. DORIME-WILLIAMS: Good morning,

everyone. I’m Dr. Marjorie Dorime-Williams. I’m currently an 

assistant professor at the University of Missouri Columbia. My

research and expertise focus on looking at assessment and 

educational evaluation in a variety of institutional settings 

with a focus on marginalized populations including students of 

color, looking at experiences of faculty and staff and thinking

about how we can improve outcomes for all of these different 

stakeholders. I have experience in post-secondary education at

a variety of institutional settings so I have worked at fouryear public institutions, community colleges, and private 

institutions as well. And so, my nomination is based on my 

research expertise as well as obviously having been a student 

for a very long time to get to the doctoral status within 

higher education. This is my first time as a negotiator in 

this role and I’m really looking forward to the process. Like 
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everyone else has said, I think these are really important 

issues and appreciate the opportunity. 

MS MACK: Alright. Thank you. And the

alternate for this constituency group is Ms. Rachelle Feldman.

MS. FELDMAN: Good morning, everyone. Thank 

you. I’m Rachelle Feldman. I’m the interim vice provost for 

enrollment at the University of North Carolina at Chapel Hill. 

I’m also the chair of the Higher Education Loan Coalition which 

is a grassroots group of mostly financial aid administrators

but all universities and colleges across all sectors and a past 

chair of COSUAA, which is the Coalition of State University Aid 

Administrators which represents four-year public financial aid 

administrators. I have about 25 years in higher education, all 

in the public sector and really looking forward to tackling

these important issues. I have been at the table once before 

during the repay negotiations and really enjoyed that with my 

friend, Will, there. I was nominated by NASFA, as Daniel 

elaborated, and also TICAS, the loan coalition, and my 

institution, and looking forward to working with you all and 

supporting Marjorie. 

MS. MACK: Thank you very much. Our next 

constituency group is Independent Students and our negotiators 

for that begin with primary Ms. Michaela Martin. 

 MS. MARTIN: Good morning. My name’s

Michaela [inaudible]. I’m currently a third- year law student 
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and single parent, section A recipient. I am really looking 

forward to this process. 

MS. MACK: Thank you. And our alternate is 

Dr. Stanley Andrisse. 

 DR. ANDRISSE: Hi, everyone. Stanley 

Andrisse. I am a formerly incarcerated person with three felony 

convictions who was sentenced to 10 years in prison. As a prior 

and persistent career criminal, in my early 20s I was sitting in 

a courtroom and had a prosecutor pushing for 20 years to life 

because she felt that I was hopeless and I had no hope for 

changing the decisions that I was making early on in my life. 

I’m now, you know, fast forward since I’m now Dr. Stanley

Andrisse, an endocrinologist, scientist and assistant

professor, tenured assistant professor at Howard University 

College of Medicine , formerly a professor at Johns Hopkins 

Medicine, visiting faculty at Georgetown Medicine and Imperial 

College of London and some other things as well, which show 

that I’ve clearly changed. I didn’t quite live up to this 

prophecy that the assistant and prosecutor bestowed on me. 

That was many years ago. I’m also the executive director of an 

organization called From Prison Cells to PhD for which my 

nomination to this committee came from, as well as being 

supported by a coalition of nonprofits that are run by formerly 

incarcerated individuals called Unlock Higher Education. This 

is my first time at this particular table and I’m looking 
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forward to the conversations ahead. 

MS. MACK: Thank you both. Our next

constituency group is Individuals with Disabilities or groups 

representing them and our primary is Ms. Bethany Lilly.

MS. LILLY: Hi, everybody. My name is

Bethany Lilly and I’m the senior director of Income Policy at 

the Arc of the United States. I’m joining you today on behalf 

of the Consortium for Citizens With Disabilities, Financial 

Security and Social Security Task Forces. CCD is a [inaudible]

organization for national disability groups and so we represent 

over 100 national disability organizations. And I’m really 

happy to be here, providing that perspective of people with

disabilities and on this issue. So, nice to work with 

everybody. 

MS. MACK: Thank you. And the alternate is 

Mr. John Whitelaw.

MR. WHITELAW: Good morning, everyone. My 

name is John Whitelaw. I’m the advocacy director at Community 

Legal Aid in Delaware. We are a non-LSC legal aid program and 

we also serve as the protection and advocacy agency for the 

State of Delaware. I have been doing advocacy work for about 

the last 33 years. 

 MS. MACK: Thank you both. I would like now 

to invite the representatives of the constituency legal

assistance organizations that represent students and/or
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borrowers. Our primary is Ms. Persis Yu. 

MS. YU: Good morning. Thank you. My

name is Persis Yu. I’m the director of the Student Loan

Borrowers’ Assistance Project at the National Consumer Law 

Center and I’m here on behalf of our low-income consumers. 

I’ve been the director of the National Consumer Law’s Center 

project for the, roughly five to six years but I’ve been here 

for the last 20 years and working in legal aid for over a 

decade. The Student Loan Borrower Assistance Project works 

with hundreds of legal aid organizations and private attorneys 

across the country in representing student loan borrowers. I 

was nominated by over 30 legal aid organizations from across

the country, representing rural areas, urban areas and inbetween. So, I’m very excited to be here. It is my first time 

as a negotiator but I have been an advisor to a number of 

different committees so far. So, thank you.

MS. MACK: Thank you. And an introduction

from our alternate, Mr. Joshua Rovenger. 

 MR. ROVENGER: Good morning, everyone. My 

name, my name is Josh Rovenger. My program is [inaudible]. I 

am a senior attorney in economic justice 

at the Legal Aid Society of Cleveland. I’ve previously been in 

private practice and then also was a staff and then senior 

attorney at the Project on Predatory Student Lending at the 

Harvard Legal Services Center. Like Persis, I was also 
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nominated by 30 plus legal assistance organizations from across 

the country and I’m both honored to be here and excited to help 

Ed effectuate its goals of finding real meaningful solutions 

for low-income borrowers and borrowers of color.

MS. MACK: Alright. Thank you both. 

Our next constituency group is Minority-Serving

Institutions. We do not have our primary with us today so 

we will hold that introduction for a later date. But we 

do have our alternate who will be subbed in later when we 

get to the substitutive issues at the main table and that 

is Ms. Noelia Gonzalez. 

MS. GONZALES: Good morning. My name is 

Noelia Gonzalez. I have over 20 years of administering 

financial aid programs in the California State University 

system. I’m currently the interim systemwide director for the 

California State University System of the Chancellor’s Office 

where we do award a combination of four billion dollars in 

federal, state, and institutional financial aid to just over, 

just under a half a million students. Thank you. 

MS. MACK: Great. Thank you. Our next

constituency group is Private Nonprofit Institutions and our 

primary is Ms. Misty Sabouneh. 

 MS. SABOUNEH: Good morning, everyone. I am 

Misty Sabouneh and I’m a primary negotiator representing the 

private nonprofit constituency group. I was nominated by the 
Negotiated Rulemaking 10/4/2021

25

leadership at Southern New Hampshire University where I work as 

the associate vice president of financial literacy and 

integrity. This is my first time as a negotiator and I look 

forward to working with all of you. 

MS. MACK: Thank you very much. And our

alternate for this constituency is Dr. Terrence McTier, Jr. 

DR. MCTIER: Good morning. I am Dr. 

Terrence McTier. I am currently the director of the Prison 

Education Project at Washington University in St. Louis. I 

look forward to working with Misty to represent out 

constituent, constituency group and the prison education 

programs. 

MS. MACK: Thank you very much. Our next 

constituency group is Proprietary -- excuse me -- Institutions. 

Our primary for this is Ms. Jessica Barry.

MS. BARRY: Thank you and good morning,

everyone. I’m thrilled to be here. I’m Jessica Barry, 

president and owner of the Modern College of Design, a small 

family-owned college located in Kettering, Ohio. I’m honored 

to represent proprietary institutions on this committee. I was 

nominated by career education colleges and universities. CQ is 

the only national association represented in private or 

secondary career schools across various academic and 

occupational disciplines. CQ represents over 650 postsecondary

institutions and works with Congress, the Department of 
Negotiated Rulemaking 10/4/2021

26

Education, accreditors, states, and other associations to 

promote access to high quality career education and importance 

of [inaudible] development. My history with the Modern 

College of Designs started in the ‘90s when I graduated from 

the Modern. I was a student myself. I have served as a, as 

the president since 2007 and became the sole owner in 2013. 

This is my second opportunity to serve as a primary negotiator

as I served on the 2017 Gainful Employment Negotiated

Rulemaking Committee. I look forward to getting to know each 

of you and learning more about your unique perspectives so we 

can find solutions that help students reach their educational 

goals. 

MS. MACK: Thank you. And our alternate for 

this constituency is Dr. Carol Colvin.

DR. COLVIN: Good morning. I am Carol

Colvin and I am representing proprietary schools. I 

currently serve as the senior vice president of Financial

Aid for South College whose main campus is located in

Knoxville, Tennessee, and I have been honored to serve students 

in the proprietary school market for almost 15 years. I also 

serve on many veterans’ education committees, including 

currently serving as the president of Alabama Veterans Affairs 

Association as we assist in training school certifying 

officials in the southeast United States to enable them to 

better serve our military students and their families. This is 
Negotiated Rulemaking 10/4/2021

27

my first time serving on a negotiator rulemaking committee and 

I am so honored to represent proprietary schools and our 

students. 

MS. MACK: Thank you both. Our next 

constituency group is the State Attorneys General. So, for the 

primary, I invite Mr. Joseph Sanders to introduce himself. 

MR. SANDERS: Hi, everyone. My name is Joe 

Sanders. I’m a supervising attorney in the Consumer Fraud 

Bureau of the Illinois Attorney General’s Office. I also serve 

as the Illinois Student Loan Ombudsman. In the first role, I 

enforce the Illinois Consumer Fraud Act and other consumer 

financial protection statutes including Dodd-Frank. I’ve been 

in that role for about eight years and my practice as an 

enforcement attorney focuses on for profit consumer fraud 

issues and student loan servicing. In my role as the Illinois 

Student Loan Ombudsman, it’s primarily a policy position. I 

review all consumer complaints related to higher education that 

come through the Illinois Attorney General’s Office and lead a 

team of consumer advocates that mediate those complaints to try 

to reach a resolution for individual consumers. I also make 

policy recommendations to legislatures and other policymakers 

here in Illinois. 

This year, we were able to pass two bills. 

One is an amendment to our Debt Settlement Act that protects 

students from student loan debt release scams. And the second 
Negotiated Rulemaking 10/4/2021

28

was, is a bill called [inaudible] which notifies students if 

they have eligibility for federal student aid before they take 

out private student loans. It also provides transparency 

around the private students who are in the market through an 

annual report that is submitted to my office and the Illinois 

Department of Financial and Professional Regulation. I was 

nominated by Illinois Attorney General Kwame Raoul and I’m 

here representing State Attorneys General across the country 

and the student loan borrowers in our states that we enforce 

consumer protection laws to protect. 

MS. MACK: Okay. Thank you for that. And 

the alternate for this constituency is 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 where 

I work on consumer protection policy and enforcement, 

including in the student loan space. This is my first time as 

a negotiator. I’m really excited to undertake this process. 

These are extremely important issues and I’m looking forward 

to tackling them with all of you and to getting to know all of 

you a little bit. Thank you. It’s an honor to be here. 

MS. MACK: Thank you both. Our next 

constituency group is State Higher Education Executive 

Officers, State Authorizing Agencies and/or 

State Regulators. And our primary here is Dr. David Tandberg. 
Negotiated Rulemaking 10/4/2021

29

DR. TANDBERG: Good morning from sunny 

Colorado. Really happy to be here. My name is David 

Tandberg. I’m the senior vice president for Policy 

Research and Strategic Initiatives at the State Higher 

Education Executive Officers Association, or more 

Commonly known by our acronym, SHEEO. SHEEO serves the 

chief executives of statewide governing policy and 

coordinating boards of higher ed and their staffs. I was

nominated by my association and I’m really thrilled and 

honored to be here so thank you. 

MS. MACK: Thank you. And the 

alternate is Ms. Susan Martindale, Suzanne Martindale.

MS. MARTINDALE: Good morning, 

everyone. My name is Suzanne Martindale. I’m the senior

deputy commissioner for Consumer Financial Protection at

the California Department of Financial Protection and 

Innovation. We are California’s state financial

regulator so we have authority to license and examine

student loan servicers and we also have broad 

consumer protection authorities thanks in large part to

the passage of some recent legislation last year, the

Student Borrower Bill of Rights as well as our 

California Consumer Financial Protection Law, which gives

us authority akin to a state level consumer financial

protection bureau and student borrowers are one of our
Negotiated Rulemaking 10/4/2021

30

target populations for targeted outreach and increased

education and awareness. I’ve been at the department for

less than a year. Prior to that, I spent more than a 

decade as senior policy counsel at Consumer Reports, a

consumer advocacy organization. In that prior role, I 

served on three rulemaking committees. I served on the

2014 program Integrity and Improvement Committee, 2015

Repay Committee and the 2017 to 18 Borrower Defense

Committee, so I’m fairly familiar with many of the topics

on the docket here. I also teach a course in student

loan law at UC Berkeley’s School of Law and, on a 

personal note, I just completed my journey through public

service loan forgiveness, so have some thoughts about

potentially how we can improve that program. Nice to see

so many familiar faces and looking forward to working

with you all. 

MS. MACK: Thank you both. Our next

constituency group is Student Loan Borrowers. First, our

primary is Ms. Jeri O’Bryan-Losee. 

MS. O’BRYAN-LOSEE: Good morning,

Everybody. My name is Jeri O’Brian-Losee [inaudible]. I am 

first and foremost a student borrower, hoping to get through 

the PSLF program. I have been nominated by the American 

Federation of Teachers, which is 1.7 million members. I am 

part of their local United University Professions. We 
Negotiated Rulemaking 10/4/2021

31

represent the faculty and professional staff of the State 

University of New York System 37,000 members. Before that, my 

role at the college was a director of opportunity programs, 

collegiate science and technology entry program, and

the science and entry technology entry program and, 

before that, I was the coordinator of disability services

and, before that, I was an academic adviser. Part of the 

reason I was nominated was not only my experience and the

experiences of the thousands of students I’ve had but also

because I currently run student debt clinics every two

weeks and have helped about 2,200 of our members work 

through the student loan process. And I’m really looking

forward to -- this is my first one, very nervous, so I

look forward to working with everybody. 

MS. MACK: Alright. Thank you very

much. And the alternate is Ms. Jennifer Cardenas. 

MS. CARDENAS: Hola. Hello, everyone. My 

name is Jennifer Cardenas [inaudible]. I am a nonprofessional 

first generation low-income student that graduated from 

Columbia University in the spring, so yay me. I represent the

Young Invincibles National Youth Advisory Board. I’ve always 

represented students, especially who have been historically 

excluded from spaces like the one I was in and I am located in 

Fontana, California. I am currently an outreach specialist for

Young Invincibles and I’m glad to be here. This is my first 
Negotiated Rulemaking 10/4/2021

32

time and I look forward to representing the needs of students. 

Thank you. 

MS. MACK: Thank you very much. Our next 

constituency group is Two-Year Public Institutions and our 

primary is Dr. Robert Ayala. 

DR. AYALA: Good morning, ladies and 

gentlemen. My name is Bobby Ayala. I am the dean of

Arts and Sciences here at Southwest Texas Junior College.

We service quite a big area down here. Some say it’s

Larger than Rhode Island. We’ll, we’ll see how that

measurement exactly comes out. I’m a first-generation

American, first-generation college students with over 16

years of experience in higher education. Although, I 

go ahead and say this, I think the last two years, we

should be able to comment it’s like 10 years, is that

right? Most of us in higher ed, that should be at least

10 years of credit. It’s been quite a journey. I have

experience in higher ed at tier 1 research institutions 

but I spent most of my career at two-year colleges, which is 

really near and dear to my heart. I’m also a PI of several 

research grants, mainly focusing on equity and access for 

under-represented students [inaudible]. This is my first time 

serving as a Negotiator. I’m extremely excited to engage in 

conversations with each of ya’ll, also incredibly nervous but 

I’m also looking, you know, looking forward to learning from 
Negotiated Rulemaking 10/4/2021

33

everybody here. Thank you. 

MS. MACK: Thank you. And the 

alternate for this constituency group is Dr. Christina

Tangalakis.

MS. TANGALAKIS: Good morning. Thank

you, Kayla. My position currently is associate dean of

financial aid at Glendale Community College in Glendale

in southern California. I was nominated by NASFA, 

National Association of Student Financial Aid 

Administrators. I am, was -- been active with NASFA

for several years. Last year, I was on the board and I

oversaw projects including state advocacy [inaudible] toolkits 

and guidance for financial aid administrators. I’m currently 

in a three, first year of a three-year term on the ethics 

committee and the first year of a three-year term as chair 

elect for the Certified Financial Aid Administrator Committee, 

which is a voluntary certification of professional competency 

in the field of financial aid administration. I, I have my

doctorate in higher education administration and leadership and I, where I looked at the impact of immigration policy 

on undocumented students in their pursuit of higher education. 

I have about 22 years in higher education. I’ve worked at 

four-year public regionals, four-year private research 

institutions, private graduate schools. I was director of 

financial aid at Hispanic Scholarship Fund and now I represent 
Negotiated Rulemaking 10/4/2021

34

and work at a two-year public community college where I plan to 

stay for quite a while. So, I’m where I wanted to end up for 

years and I’m finally where I want to be, representing open 

access institutions and I’m thrilled to be here. Thank you. 

MS. MACK: Thank you. And our final 

constituency group who I appreciate for their patience is the 

United States Service Members, Veterans or Groups Representing 

them and our primary is Mr. Justin Hauschild. 

MR. HAUSCHILD: Thank you, Kayla. Hello, 

everyone. My name is Justin Hauschild and I’m honored to have 

been nominated by more than 20 military and veteran serving 

organizations to serve as a primary negotiator for U.S. service 

members, veterans, and the groups that represent them. I work 

for Student Veterans of America as a member of the government 

affairs team where I conduct legislative and regulatory policy 

analysis and advocate for policy solutions to support student 

veterans and service members. This is my first time serving as 

a negotiator and it is, of course, my intent to represent 

veteran and service members’ interests and amplify their voices 

in these proceedings to ensure the Department’s regulations can 

serve these individuals as well as they possibly can. It’s a 

pleasure being here with you all and I look forward to our 

conversations today and the weeks and months ahead. Thank you. 

MS. MACK: Thank you. And our alternate for

this constituency is Ms. Emily DeVito. 
Negotiated Rulemaking 10/4/2021

35

MS. DEVITO: Good morning. I’m Emily 

DeVito. I am the associate director of the National 

Legislative Service for the Veterans of Foreign Wars or the VFW 

in our DC office. I oversee economic opportunity policy here. 

Like Justin, I was nominated by a coalition of 22 military and 

veteran service organizations to represent service members and 

veterans. I myself am a Navy veteran and a military spouse. 

Following my active-duty service, prior to my role here at VFW, 

I worked at institutions of higher learning on teams that were 

focused on military-connected students. So, I am very much 

looking forward, as Justin said, to representing the interests 

of those military and veteran students. This is my first time 

participating in the rulemaking process and I’m looking very 

forward to working with each of you. 

MS. MACK: Okay. That completes the 

primaries and alternates on the committee. I thank each and 

every one of you for introducing yourselves and I thank you in 

advance for your time, your efforts, your expertise and your 

commitment to this process and the representation of your 

respective constituencies. We’re glad to have the opportunity 

to work with each and every one of you. To assist you with you

work, we would also like to take this opportunity to introduce 

two expert advisers who have been selected to serve as a 

resource to your community, your committee. These individuals 

were similarly nominated by the public, selected by the 
Negotiated Rulemaking 10/4/2021

36

Department. They are not themselves members of the committee 

and nor will they participate in our consensus decision-making 

process, but instead they’re available as a resource to you to 

provide experience and research-based information and data and 

perhaps make recommendations on the regulatory language. So, 

first, I’d like to welcome and invite and introduction from our 

adviser on economic and/or higher education data, that is Dr. 

Rajeev Darolia. 

DR. RAJ DAROLIA: Everyone, good morning. 

I’m Raj Darolia. I’m the [inaudible] professor of public 

policy and an associate professor of public policy of economics

at the University of Kentucky. I’ve done research and 

evaluation work that leads to a number of topics that will be 

discussed in this session. And I’ve worked with a fair amount 

of related data, though, as we will likely talk about 

throughout this session and these discussions. [inaudible] 

fully answer many of the questions that you’re going to want to

ask often does not exist or is, is hard to come by. I do 

understand my, my role is new in a process like this and so I 

think there are still some questions to, to answer about how 

best I can serve you. I’ll just say at this point I look 

forward to hearing about how I can best support the committee. 

My goal is to make sure that you all are informed as much as 

possible by data, by research, by analysis so you make 

decisions in a negotiated way that will lead to the best 
Negotiated Rulemaking 10/4/2021

37

solution. 

MS. MACK: Thank you. And I hope to address 

some of those questions on our opening remarks this morning so 

that we can provide some clarification around, around your 

role. So, so thanks for pointing that out. Next, I’d like to 

welcome and invite an introduction from our adviser on 

qualifying employers on the topic of public service loan 

forgiveness, and that is Ms. Heather Jarvis. 

MS. JARVIS: Good morning, Kayla. Good 

morning, everyone. It’s my pleasure to meet those of you that 

I have not met previously. I’m a private attorney, 

specializing in student loan repayment and forgiveness 

provisions. I began work on the public service loan 

forgiveness program before its passage in Congress in 2007 and 

have monitored the process throughout these, this decade and 

these ensuing years and it is my pleasure to serve as adviser 

to this committee with regard to the regulatory language, 

statutory language, and the experience of public service 

employers. As well, I know many of you have your own personal 

experiences with public service loan forgiveness and these 

forgiveness provisions and I want to invite you to please ask 

anything of me as an adviser that crosses your mind. I’m 

looking forward to this process of improving access to student 

loan forgiveness. Thank you. 

MS. MACK: Alright. Thank you to both of 
Negotiated Rulemaking 10/4/2021

38

our advisers. Last, I would just like to take a moment to 

introduce you to your facilitation group for this round of 

negotiated rulemaking. I and three of my colleagues who I will 

ask to introduce themselves momentarily, are commissioners or 

federal mediators with the Federal Mediation and Conciliation 

Service. FMCS is a small independent federal agency of the 

executive branch and while we have several statutory bodies of 

work, one is in fact negotiated rulemaking. Specifically, the 

Administrative Dispute Resolution Act of 1990 and the 

Negotiated Rulemaking Act of 1990 authorize FMCS to put our 

expertise and dispute resolution skills to work, to bring 

together both the regulators with those impacted by the 

regulations in a collaborative process prior to the issuance of 

a new rule. 

In this regulatory negotiation process, you 

can expect your FMCS team as a neutral third party to host all 

of the technology and the platforms within the virtual 

sessions. We are going to facilitate each of the discussions 

and the consensus taking for all issues. We’re going to assist 

the committee with both identifying and overcoming issues and 

barriers as they always arise in multiparty negotiations. We 

will continually monitor your process, pushing forward and 

enforce the organizational protocols. We will work with your 

committee as appropriate during breakouts and caucuses during 

our session time together and perhaps in small working groups 
Negotiated Rulemaking 10/4/2021

39

between our sessions in October, November, and December. We 

are also going to take charge of soliciting and distributing 

documents and information to the Department, to the committee, 

and to the advisers. And we want to capture your process and 

progress by drafting session summaries that we can provide to 

you. Truly, we plan to be here and work with you every step of

the process. While you are the subject matter experts focused 

on the topics before the committee, we’re going to drive the 

process and move the committee through each session. It is our

role to navigate the order, the agenda, timeliness, strategies,

and all dynamics at and away from the table, all with an effort

to assist you all in being very solution oriented and 

ultimately with the hope of building consensus around each and 

every one of the issues. We want you all to feel encouraged 

and empowered to reach out to us directly with questions, 

comments, and concerns throughout the entirety of the process 

and please feel free to do that. You can do that through 

direct chat in the sessions but you should all have, by now, 

our emails and phone numbers and we welcome the communication 

directly from you. I have been a mediator with FMCS for five 

years, working out of our Denver, Colorado field office. I 

know I have another fellow folk from Colorado here. I really 

truly enjoy high stakes multiparty negotiations and really 

appreciate in my role the opportunity to work with so many 

different subject matter experts in various sectors, 
Negotiated Rulemaking 10/4/2021

40

industries, locations, and circumstances.

I am joined by three very esteemed FMCS 

colleagues who I want to invite to introduce themselves but 

also to share anything additional from their perspective around 

our role and/or our agency. So, first, Emil, would you like to 

introduce yourself?

MR. TOTONCHI: Yes. Thanks, Kayla. My 

name’s Emil Totonchi. I’m a commissioner in the Chicago 

office. I have also, like Kayla, been with FMCS for about five 

years. I very much look forward to working with all of you and 

helping drive this process forward and we really look forward, 

as Kayla said, to your substantive expertise on these important 

topics and we will do our best to be the process guardians to 

ensure that this process moves forward. Thank you. 

MS. MACK: Cindy, would you like to 

introduce yourself?

MS. JEFFRIES: Good morning. I’m 

Commissioner Cindy Jeffries. I am based out of our Orlando, 

Florida field office. I have just started my 12th year with 

FMCS and this is my third negotiated rulemaking as a 

facilitator as the other, the previous two were with a 

different entity other than the Department of Ed. I look 

forward to working with all of you and making this a successful 

process. 

MS. MACK: Thank you. And last but 
Negotiated Rulemaking 10/4/2021

41

certainly not least, Brady, would you like to introduce 

yourself?

MR. ROBERTS: Sure. Good morning, everyone. 

My name is Brady Roberts. I am a commissioner of FMCS in the 

beautiful Philadelphia region. I’ve been with the agency for 

about two years and I’m really looking forward to getting to 

know all of you a little bit better and assisting you as you do 

this very important and critical work. Thank you. 

MS. MACK: Alright. I believe that 

completes the introductions but if I have missed anyone at all, 

I apologize and would invite you to let me know at this time. 

Alright. I think we’ve covered it then. Now that we’ve gone 

through introductions, we have some housekeeping pieces to go 

over. I want to identify a few technology reminders and then I 

want to review the protocols with you. I know that you have 

seen them previously and had an opportunity to discuss them 

with us during our out, outreach sessions but based on those 

dialogues and a few questions that have already come up, there 

are some highlights that we need to review together. First and 

foremost, let me remind you technology-wise, if you haven’t 

already, and I think most of you have, we’re trying to have a 

consistent naming convention. So, again, that would be your 

first thing, an A, or a P for alternate or primary and then an 

abbreviated reference to your constituency group. If anyone is 

not comfortable with us utilizing their first name, please 
Negotiated Rulemaking 10/4/2021

42

alter your naming convention to reflect how you would like to 

be referred to. 

Along those lines, a couple of other 

technology notes. While you’re not speaking, please keep your 

audio muted. Everyone’s done a fantastic job of that thus far 

but we’ll continue to remind you of that just to cut down on 

background noise, distractions and that will help us all more 

readily identify the speaker at any given time. If you are at 

the main virtual table and have something to share when we 

invite questions or comments, please use your virtual hand. We 

will go by virtual hands and do our best to call on folks in 

order that the virtual hands are in fact raised. If there are 

any questions about how to do that, please let me know. 

Should you have any technology-related 

questions, concerns, or issues throughout the day, please send 

a direct message to Brady. He can either help you through 

direct message in the chat or feel free to email him. Brady, 

if you haven’t already, or even if you have, perhaps do again,

place your email address into the chat box for everyone’s 

reference. 

A quick note on the chat feature, it will 

remain enabled as we’ve previously discussed with you but group

chat messages going out to everyone will be subject to an 

ongoing transcript. Each day, the public will have an 

opportunity to log into our meeting and view it via 
Negotiated Rulemaking 10/4/2021

43

livestreaming. The Department has posted a registration link 

on their website. That link is actually the same place where 

all of you may capture updates and documents. Every document 

that we share out to the full group will be posted there, so 

that is actually a really great resource for you to have. 

We’ve sent it out in a couple of emails but I’m going to ask 

that Brady post it again in the chat box for your reference. 

Lots of good information, updates, registration links and 

documents posted there. 

Now, I want to move us on to the 

organizational protocols. Again, I know that each of you 

received a copy of these protocols and that we had an 

opportunity to discuss them at least briefly with each of you 

in our outreach session. However, some important questions 

came up in those meetings with you. So, there are a number of 

topics that we thought it would be good to cover at the outset 

of our initial session to make sure that we are all on the same 

page in how we will operate moving forward. 

These protocols are how we are going to hold 

each other accountable,and how us facilitators are going to 

hold each of you accountable, to the process. So, first and 

foremost, I wanted to address primary and alternate committee 

members. We recognize per the protocols primary and alternate 

committee members are a team representing their constituency. 

And to that end, we value the input, expertise, and 
Negotiated Rulemaking 10/4/2021

44

representation that all of you bring to the process. However, 

in our virtual process, there are several important 

distinctions that we must note to make sure that we are 

operating in an efficient and clear consistent manner. 

First, as in previous in-person rulemakings, 

only the primary for the constituency group sat at what is the 

main table. Obviously, we don’t have a main table here so 

we’re going to try to replicate that virtually. What we want 

to do is, in an effort to replicate that, have at the main 

table our primary negotiators on screen on camera at all times 

when they are at the table. And during those times, we will 

ask our alternate to turn off their camera. That will help us 

as facilitators and the public viewing delineate between those 

who are at the table and those who are not for the purpose of 

that topic and for the purpose of taking consensus at any given 

time. 

After much consultation and consideration,

this was truly the best virtual practice that we would arrive 

at to achieve replicating the idea of that main table. 

Alternate committee members, however, will 

be invited to turn on their cameras and come to the main table 

and this might occur in a number of instances. First and 

foremost, in the absence of a primary member, the alternate 

will participate at the main table and participate in our 

consensus decision-making. For example, we have a primary who 
Negotiated Rulemaking 10/4/2021

45

is not present today. We will ask that that alternate remain 

on camera and at the table and to participate in consensus 

checks if we get there later this afternoon. The primary and 

the alternate may also decide that an alternate is going to sub 

in for the primary for a particular topic. For those topics, 

we would ask that the primary go off camera and the alternate 

come on camera so, again, we can easily delineate between who 

is participating for that topic and who will participate if we 

take a consensus check. 

Another instance that the protocols 

addresses is that a primary may ask that an alternate be able 

to speak on a particular subtopic. If an alternate is coming 

on screen, so it will just be for a short period of time on a 

specific subtopic, that at that point in time we may in fact 

allow the primary and alternate to both remain on screen. 

After the alternate has spoken on that subtopic, they can then 

go off camera. 

Again, we’ve thought a lot about this. We 

hope that all of you understand this is purely driven by the 

virtual and, and logistical reasons and so we hope that that is 

not an issue for everyone. We would also like to remind you, 

per the protocols, if an alternate is going to substitute in 

for a particular day or a particular topic, to give the 

facilitator advance notice as soon as it’s known. This will 

help us be prepared and easily be able to help you monitor the 
Negotiated Rulemaking 10/4/2021

46

on camera/off camera and consensus check components. 

The same will work for our advisors. 

Advisors, we’re going to ask that you go off camera for certain 

instances. When you have requested to speak on a particular 

topic or the facilitator or committee member has asked you to 

speak on a, on a topic, we will invite you to the main table, 

have you turn on your camera for that portion of thehearing. 

So, that is the way that we want to navigate that piece. 

Alright. I’m going to keep going and I’ll 

pause for any clarifying questions after we cover everything 

that we hope to cover this morning. 

The next piece that I would like to cover 

with you is consensus decision-making. Some of you have been 

involved in consensus taking before. This may be new to others 

but we thought it would be helpful to clear up a few aspects of 

this. 

We will utilize good faith group problem 

solving to address the interest of the committee members and 

ultimately reach unanimous agreement. Otherwise, described as 

building consensus. It is not a majority vote but rather an 

expression of each individual at the table’s agreement or 

dissent. And we have built consensus once everyone is in 

agreement. And until then, we haven’t so no individual or 

minority group can be outvoted in dissent, in, in consensus 

decision-making. 
Negotiated Rulemaking 10/4/2021

47

A few important notes here. Per the 

protocols, members of the committee, you should not block or 

withhold your consensus unless you have serious reservations 

about what is being proposed, okay? Absence at the time of the 

consensus check will be deemed the equivalent to not 

dissenting, meaning your absence will not hold up reaching 

consensus at that given time. I want to be clear on those 

points as they, as they are included in your protocols. 

To take the consensus checks, we are going 

to use an official three, my thumb on screen, three thumb 

approach, okay? This is how we are going to take and monitor 

consensus. An upward thumb, this is an expression of 

agreement, okay? This means I am in agreement, I support the 

proposal at hand, we are good to go. A sideways thumb is 

actually also an expression of agreement but what this does 

indicate is perhaps this isn’t your first choice, perhaps 

you’re not in love but you will agree with the proposal, the 

outcome and you will support it moving forward. If everyone 

around the table during a consensus check is up or sideways, we 

are in consensus and keep moving forward. The only way that we 

are not in consensus is if one or more of you has a downward 

thumb. And this in fact indicates that you are not in 

agreement with the proposal at hand or whatever we are taking 

consensus on and that our work, our dialogue needs to continue. 

I do make it a practice if possible if there 
Negotiated Rulemaking 10/4/2021

48

is someone with a downward thumb, I would encourage you to be 

able to articulate why you cannot support that proposal at hand 

and perhaps to the extent possible have an idea or a proposed 

idea that could potentially get you to here or here. Again, we 

encourage you all to be very solution oriented and the goal 

truly is to build consensus on each of our issues. So, to the 

extent that you are not, and we are going to ask in a solutionoriented manner that you bring additional ideas to build 

consensus. And we will keep at it until we do in fact build 

consensus within our scheduled time together. 

One other note on, on that. We will be 

seeking consensus issue by issue and I know that that is 

different, particularly from past experiences with those of you 

who have participated in negotiated rulemaking before where 

consensus was either taken based on groups of issues or a 

package at the end of session. That is not the case here. We 

will in fact be doing a consensus check on each issue. That 

way, issues that we have in fact reached consensus on are not 

held up by other issues where a consensus has not been reached. 

So, again, I just want to make special, call special attention 

to that nuanced approached where we will take consensus issue 

by issue. 

Throughout the process, we may also take 

what I am going to refer to as a temperature check for 

tentative agreement. As we go through these topics and issues 
Negotiated Rulemaking 10/4/2021

49

and talk about subtopics therein, we may ask the committee on 

this subtopic can I check for tentative agreement? And that is 

us –the facilitation team-- and perhaps you with each other,

getting an idea of where everyone is at that time. If we ask 

for your temperature or a tentative agreement as I’m going to 

call it, we will utilize the same three thumb approach. The 

thumbs will mean the exact same thing. However, that will not 

be an official consensus check to complete and finalize an 

issue. And I promise you that this facilitation team will make 

it clear if we are in fact checking for a tentative agreement 

or we are in fact taking an official consensus check. Alright? 

So, again, there three thumb approach issue by issue for each 

topic for consensus decision-making. 

Another piece that has come up is data 

requests and information requests. We’ve thought about this a 

great deal and in an effort to streamline an effective and 

consistent process for sharing data, this is what we would like

to do. If you have data requests, if FMCS could receive those 

and then we will provide them to the advisrs. We think that 

will be a streamlined and consistent manner to do things. And 

if the advisers then have information, then have information or

data available to share back, they can provide that to FMCS and

we will blast that out to all committee members. The intent 

here, again, is to make sure that all of you receive and have 

the benefit of the same information. Alright? So, advisers, 
Negotiated Rulemaking 10/4/2021

50

we want to help you streamline your process and be consistent 

and we’re, and, and help respect if and address if duplicitous 

or multiple information requests are coming in. 

Data requests for the Department, we will 

ask that you share out and provide at the time that we are 

introducing new topics. Alright? We want to, again, receive 

those. FMCS will share those with the Department. We can 

discuss those as necessary during the session and any 

information that is provided back from the Department will in 

fact be shared out with all of the committee members. So, that 

is information requests and sharing out. Again, we want to 

streamline this, be efficient and consistent with our approach 

so that you all receive the same information. 

The next point that I want to talk about is 

breakout rooms and caucuses. And I, I want to assure you I 

don’t intend on speaking for this long at any other portion of 

any day of any session. So, just bear with me for a few more 

moments. I do want to share with you some additional 

information on breakout rooms and caucuses. I know that if we 

were all in person it would be easy for you to speak with each 

other on breaks and lunches or call a caucus during those 

times, in person. We want you to be able to do that here. The

protocols anticipate any committee member being able to call a 

caucus for consultation for a specified and hopefully limited 

period of time. We are going to achieve that within our 
Negotiated Rulemaking 10/4/2021

51

virtual space with the breakout rooms. I think we, in our 

outreach meeting with you all, addressed the breakout rooms and 

there’s a couple of points that I want to make. 

First, the breakout rooms are confidential 

and secure in that there will be no livestreaming or recording 

of the breakout rooms. So, if you meet with other committee 

members, alternates, advisers within those breakout spaces, 

again, no livestreaming, no recording. FMCS will make 

ourselves available to facilitate those caucuses and breakout 

rooms and we’ll check in with you periodically to make sure 

that we are being productive and that we are keeping to our 

timelines. I’ll remind you that if you are ever in a breakout 

space and a facilitator is not present, there will be an icon 

at the bottom of your screen that either says ask for help or 

call host. If you click on that, it will alert your 

facilitation team that you are ready to meet with us or need 

assistance in some manner. 

For time management purposes, I can tell you 

that us facilitators are going to work with you to make sure 

that we are using caucus time intentionally and strategically 

for limited periods of time. It is no secret that we have a 

number of very important topics that you all feel very 

passionate about to address in a relatively short period of 

time. So, during our session time, we will help navigate those

caucuses and make sure, again, that they are for limited times 
Negotiated Rulemaking 10/4/2021

52

and that they are very productive because we want to use all of 

your time productively and if anyone is going to a caucus, the 

main table session hits the pause button. Alright?

In terms of participation, only those within 

these Zoom meetings will be allowed to access the breakout 

rooms through Zoom. This means that we will not be able to 

admit other individuals with whom you may want to consult into 

the Zoom meeting for purposes of joining you with your caucus. 

I know this came up in a number of our one-on-ones with you and 

I understand the concerns there. Consultation is critical and 

this is in no way to stifle dialogue or input from others with

whom you may need to consult. And we respect that. It is 

simply a matter of logistics, keeping the facilitators focused 

on the task at hand with the committee, preserving our time 

together by minimizing potential technical issues and 

protecting the security of our virtual meeting in Zoom for 

government. 

While in the breakout rooms, we encourage 

you to contact and consult with anyone that you need to. Feel 

free to call them, open up a conference line or use whatever 

technology you deem appropriate to welcome those folks in your 

caucus. We simply cannot do it through the Zoom platform. And 

I, I’m going to ask all of you to under, understand the reasons 

driving that. 

We also encourage you to consult with those
Negotiated Rulemaking 10/4/2021

53

folks on breaks, on lunches, outside of session hours and inbetween our sessions so that you can readily have their input 

available to you. But again, we appreciate your understanding 

around protecting the integrity of our, of our Zoom platform. 

Another piece in the protocols are 

subcommittees. The Prison Education program subcommittee has 

been created by the Department already. Two of your fellow 

committee members will in fact serve on that subcommittee along 

with others with relevant expertise. This subcommittee will 

meet in October and November providing an update to your 

committee in November and additional information and perhaps a 

recommendation in December. It’s important to keep in mind 

that that the subcommittee is not a voting body or decisionmaking body. Their recommendations will in fact come back to 

this committee for consideration and consensus. 

Mr. Aaron Washington, who introduced himself 

earlier from the Office of Postsecondary Education will be part 

of the team leading that subcommittee. FMCS is happy to field 

any questions that you have about the subcommittee and if we 

don’t have the answers, we’ll consult with Aaron to get those 

for you. 

Any committee members interested in 

observing the subcommittee sessions may do so by requesting 

that, the livestreaming link. And this can be completed at the 

link that was already shared by Brady in your room. So, so 
Negotiated Rulemaking 10/4/2021

54

please save that link. It is a great resource to you all. 

Your committee, per the protocols, can 

create additional subcommittees by consensus. If that’s 

something that someone seeks to do, we can address that. 

Again, tthose subcommittees will not be a decision-making body 

but, again, would refer back any recommendations to your 

committee for decision. 

The last piece that I want to touch upon is 

social media. This came up in a number of our conversations 

together. First and foremost, we ask, pursuant to the 

protocols, that everyone refrain from posting and commenting on 

social media during our sessions together. If for no other 

reason than because we want you fully engaged and participating 

when we’re together. We also recognize that outside of our 

sessions, we appreciate that social media can be a really 

effective tool for positive use, such as solicit, soliciting 

feedback from your respective constituencies. So, we ask, 

however, if you do engage in social media, it is done 

consistent with the protocols. So, a couple of things to 

remind you. 

Each of you shall act in good faith in all 

aspects of the negotiations and each of you should refrain from

characterizing the views, motives, and interests of your other 

members regarding negotiated rulemaking. We want to be clear 

to acknowledge that each of you are here because you have 
Negotiated Rulemaking 10/4/2021

55

expertise. You were nominated by the public and selected by 

the Department to work together in good faith in striving to 

reach consensus on a number of really important issues. Each 

and every one of you are valuable to this process and we ask 

that you each treat each other accordingly. 

Finally, it’s been previously conveyed that 

your agreement to participate and serve as a negotiator 

indicates your willingness to follow these protocols. And so, 

we are going to ask you at this time to approve the 

organizational protocols and adopt them. Before we do that, 

are there any specific clarifying questions? Yes, Daniel, I 

see your hand up.

MR. BARKOWITZ: Yeah, thank you, Kayla. Can 

you give some context or background about the move from 

consensus overall versus consensus by issue? What are the 

thoughts around that particular choice in this negotiation? I 

understand that’s a change from past practice. 

MS. MACK: Yes, you are right. I believe in 

past practice there has been sort of a package consensus taken 

and I think here -- and, and this was deliberated and discussed 

by many at length, considering perhaps pros and cons of both 

approaches. But I think we ended up landing on issue by issue 

because we did not want the whole package to be held up where a 

consensus couldn’t be reached on anything if perhaps consensus 

was only not reached on one or two issues. So, if you reach 
Negotiated Rulemaking 10/4/2021

56

consensus on the majority of the issues, that consensus gets to 

move forward without the few issues where consensus wasn’t 

reached. Facilitation team, if you have any other thoughts on 

that, I invite you to share. Daniel, does that answer your 

question? Perfect. Will, please. 

MR. SHAFFNER: Thank you. Quick question, 

kind of along the same lines of Daniel’s question on the 

consensus reaching by topic. Now, in the past in the last 

[inaudible 01:26:57] I served on, if consensus was reached then 

we were able to speak positively and the Department handled the 

preamble and some of the other language. Now, if consensus was 

not reached, then it was kind of like alright all bets are off 

and people may be speaking from their perspective on certain 

topics. Is that still the case and -- because in the past, 

obviously, if consensus was reached in its entirety, it kind of 

locks everything down. But if we’re going item by item, that 

sounds like that might change?

MS. MACK: It is my understanding that it 

would be a differentiated approach, so just what you 

articulated for those pieces where a consensus was reached, 

that would be the case and then those other pieces where a 

consensus wasn’t reached, would, would, would be exactly what 

you said but for those cases. So, it’s just a differentiated 

and more nuanced response. But I would invite Jennifer, if you 

have any additional thoughts on that to share, happy to hear 
Negotiated Rulemaking 10/4/2021

57

them. 

MS. HONG: No, I think you’ve carecharacterized that correctly. On those issues that we reach 

consensus, we would expect that you would not comment 

negatively on those issues. 

MS. MACK: Okay. Thank you. And I saw your 

thumbs up, Will, so we must’ve answered your question. Any 

other clarifying questions before I ask you to formally adopt 

these protocols? And utilize your thumbs for the very first 

time in this negotiated rulemaking to reach agreement. 

Michaela, please. 

MS. MARTIN: Yes. So, if we reach consensus 

on one topic, does that mean that we can at no point -- are we 

always going to do that before we move to the next topic? Or 

we will be taking this consensus first, like towards the end? 

And I ask that because I wonder if that in any way limits our 

ability to negotiate on that broader kind of conversation, like 

if folks were like oh, this, you know, I mean, it’s 

negotiation. I’m not the most familiar with how this process 

goes, this particular negotiation goes, but how those kind of 

things can come into play. If we start with one and come to a 

consensus, and then we’re done, we shove that aside but then 

later maybe somebody might want to use, you know, part of that 

part of a negotiation for another part. 

MS. MACK: So, I’m, I’m tracking you and 
Negotiated Rulemaking 10/4/2021

58

I will tell you that my best answer is we we will take a 

nuanced approach. It is not our intent to begin an issue and 

continue it until we are in consensus before we move on to 

another issue. We will begin, introduce an issue, discuss it, 

see where we can get in the allotted period of time or where it 

makes sense to hit the pause button and then we will in fact 

move to the next issue. So, we’ll take consensus checks 

throughout the sessions in October, November, and December if 

and when it makes sense for us to do so. But we will be 

pushing on each of the issues to reach consensus and not 

holding up one for another for strategic purposes that way. 

Does that answer your question, Michaela?

MS. MARTIN: Yes, thank you. 

MS. MACK: Mm-hm. Any other clarifying 

questions, just raise that virtual hands. Okay. And I am 

going to ask our primaries, our federal negotiator and our one 

alternate who is sitting at the table to indicate whether or 

not you are in agreement to adopt these organizational 

protocols. And I’m going to look for your thumbs. And I’m 

going to ask my facilitation team to help count them as well. 

I counted 17 upward thumbs, so you have reached your first 

agreement of this negotiated rulemaking and adopted your 

protocols. I appreciate that and congratulations on the first 

agreement. I intend next to move into reviewing the agenda. I

see your hand, Persis. 
Negotiated Rulemaking 10/4/2021

59

MS. YU: Thank you. I would also like to 

move to add negotiators to the table. Is this an appropriate 

time to do so?

MS. MACK: We can discuss that now. Persis, 

who are you -- give us more detail, please. 

MS. YU: Yes. So, I would like to propose 

to add two seats to the table. I would first like to propose 

that we add an additional borrower seat. I think having the 

voices of those impacted by the policies that we are 

negotiating at the table is incredibly important. We are 

fortunate to have representation from both the public and 

nonprofit sectors but there is not currently a borrower from 

the proprietary sector. There should be parity in borrowers 

and institutional representation and, moreover, the panel does 

not currently have anyone with personal experience in the 

borrower defense process. I, therefore, nominate Theresa Sweet 

[phonetic], former student at the Brooks Institute to be, as a 

named plaintiff in the lawsuit [inaudible] Cardona to this 

negotiating table. I can go further into her qualifications if 

that would be helpful.

MS. MACK: Actually, can I ask you to place 

that individual’s name and respective constituency in the chat 

just so that we all have that for a reference.

MS. YU: Sure thing. I’ll do that right 

now. 
Negotiated Rulemaking 10/4/2021

60

MS. MACK: Let me remind you all that per 

the protocols, your committee by consensus may add additional 

individuals to the committee. And this is what Persis is 

suggesting. Persis, are there any other motions to add 

additional members?

MS. YU: Yes. I also would like to move to 

add a consumer advocacy representative. This is a seat that 

has been historically represented at the negotiated rulemaking 

table and has been omitted this time around. Student debt is 

at its core a consumer protection issue. While the product 

that it finances may be unique, the debt itself is originated, 

serviced, and collected like any other. So, therefore, it only 

makes sense to have a negotiator who understands how credit, 

servicing and debt collection plays out for consumers. In 

particular, for consumers of color as we have centered equity 

in this conversation. I nominate for this purposes Jaylon 

Herbin [phonetic] who is an outreach associate for the Center 

Responsible, for the Center for Responsible Lending where he 

focuses on outreach and development and student loan 

[inaudible]. The Center for Responsible Lending has advocated, 

both at this negotiating table, for many years and has 

advocated to level the financial playing field for low-income 

borrowers and borrowers of color in particular. So, I can add 

his information to the chat as well. 

MS. MACK: Perfect. That’s exactly what I 
Negotiated Rulemaking 10/4/2021

61

was going to ask you to do. Before I ask for comments on this, 

does anyone else intend to make a motion to add anybody to the 

committee at this time? I’m not seeing any. So, let me open 

it up for comments. Jennifer, please. 

MS. HONG: Thank you, Persis. Just a, just 

a couple comments on these nominations. I just want to say 

from the outset something that you’ll notice is that we were 

absolutely cognizant that this is a rulemaking on student loan 

borrowers and we’ve tried to put borrowers front and center in 

this discussion. And I believe that we’ve, we’ve really got it

right in terms of the categories that we’ve opened up for 

borrowers and for students. We have a dependent student 

category, in independent student category, the student loan 

borrower category and constituency that you represent, Persis 

as well. So, we, we have been -- I cannot emphasize enough how

deliberate we’ve been in trying to constitute this committee. 

And actually, hearing all your introductions, I feel like we’ve

done a really good job of capturing the universe here of the 

topics that we’re trying to address. We have a longstanding 

policy where we cannot, we cannot have students [inaudible] 

that have an outstanding lawsuit against the Department. We 

also, we also -- while we may have considered having students 

represented by sector, institutional sector, we realize that’s 

just not feasible. First of all, we, we tend to have 

difficulty getting students to sit on the committee given that 
Negotiated Rulemaking 10/4/2021

62

students are very busy. We’re fortunate that we have really 

great representation right now; however, we recognize also that 

in negotiating our defense rules that it’s not exclusively a 

for profit issue. We realize that it, it largely effects for 

profit institutions but it’s not exclusively a for profit 

issue. So, I just want to put a statement on the table on the 

onset, in the onset. 

MS. MACK: Thank you, Jennifer. Does anyone 

else want to comment on the motion to add one or two 

individuals to the committee. Josh, please. 

MR. ROVENGER: Thank you. Actually, it’s 

more of a question for the Department about the practice 

against allowing students who have an active lawsuit against 

the Department to sit on the committee because, I mean, to my 

mind, someone like Ms. Sweet brought this litigation to hold 

the Department to its own regulations and to AGA. And so, I’d 

just be curious in hearing a little bit more as to, as to why 

there’s that prohibition. 

MS. HONG: Sure, Josh. I’d be happy to 

answer. We’ve had this situation in the past and we’ve just 

found that, for the purposes of the negotiations, it has been a

distraction where we really want to stay laser focused on the 

issues rather than the outstanding legal challenge that the 

Department is facing. And we’ve found that that has been the 

case. And, just to keep our negotiations above board, we 
Negotiated Rulemaking 10/4/2021

63

decided to adopt this policy to prohibit individuals that have 

an outstanding lawsuit against the Department from 

participating on the negotiating committee. We find that to be 

a reasonable policy. I just -- I, I realized I failed to 

address Persis’s second nomination on the consumer advocacy 

piece and I just wanted, I do want to draw your attention to 

the fact that we have State Attorneys General which we’ve 

opened a seat in the AG spot for and, again, we added a 

borrower’s spot to reflect that this is a student loan borrower 

negotiation. So, this is quite unprecedented that we have this 

many slots available for student borrowers and we’re quite 

pleased that we have the committee constituted as we do. 

MS. MACK: Excuse me. Thank you, Jennifer. 

Really quickly, I would like to ask at this time all of our 

alternates and advisors turn off their camera because we are 

going to take these to a consensus check and it will be much 

easier for us to take a consensus check on these motions when 

we need to do that. So, I appreciate your, your compliance 

with that at this time. With the exception of Noelia, please 

remain on in lieu of the primary. Thank you. Brian, please. 

MR. SIEGEL: Yes, thank you. I just want to 

note that, to respond to the question about parties in 

litigation with the Department, it -- we look at it not just in 

regard to individual students but in regard to attorneys and 

other representatives who are representing parties against the 
Negotiated Rulemaking 10/4/2021

64

Department on issues that are being discussed at the 

negotiating table. At the same time, those parties 

representing those representatives are representing parties in 

litigation on those same issues. It just complicates our 

relationship with those parties and our ability to talk to them 

in, in those different circumstances. At -- as an attorney, 

we’re restricted in talking to parties who are represented by 

counsel in other, in other matters at the same time. So, it’s 

been a consistent practice over the years, over the more than, 

or close to 30 years we’ve been doing negotiated rulemaking to 

exclude parties from the, from the negotiated rulemaking table 

who are in active litigation against the Department on those 

topics that we are also discussing in the negotiated 

rulemaking. 

MS. MACK: Thank you, Brian. Jessica?

MS. BARRY: Yeah, I have a question for the

Department while we’re talking about student seats. I know 

there are two student seats from the public sector but I 

wondered why there, there isn’t a seat for a student from a 

proprietary school. 

MS. HONG: Kayla, can I jump in there?

MS. MACK: Yeah, please, absolutely. 

MS. HONG: So, the question was why 

there’s no student representation from a proprietary school. 

Is that it? Okay. So, as I mentioned to Persis, because I 
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65

think that what is on the table is that we -- while we 

considered doing this by sector, it just wasn’t, it wasn’t 

feasible. Again, we find that students are, are very busy and 

we’ve opened up these student, the student loan borrower 

category exclusively for students and then divided the 

categories for independent and dependent students. And we felt 

like that was a most reasonable approach as opposed to -- we, 

we didn’t deliberately select students based on school sector. 

MS. BARRY: Okay. Thank you for the answer. 

MS. MACK: Alright. Thank you both. 

Persis, please. 

MS. YU: Yeah, I just had a, a follow-up 

question about the, the litigation aspect and whether or not 

that includes any member of the Sweet class or, you know --

because this is a fairly, obviously, a very large class or 

whether or not it is restricted to named plaintiffs. 

MS. MACK: Department, so you have an answer 

to that question?

MS. HONG: I’m going to defer that to our 

legal counsel, Brian. 

MR. SIEGEL: We have to [audio] that, that 

we received -- Ms. Sweet was originally nominated as part of 

the public process and we considered her -- the, the issues 

that, that I raised earlier in regard to her initial nomination

and they still hold. If you -- you know, the Sweet class is, 
Negotiated Rulemaking 10/4/2021

66

as you said, very large. It would be -- it's the named 

plaintiffs who are in litigation since members of the class 

don’t necessarily opt in or opt out in this type of case. We 

would limit the, our litigation exception here to named 

plaintiffs in this case. 

MS. MACK: Alright. Thank you all for the 

questions and comments around the motions to add these two 

individuals. Can we take a consensus check on whether or not 

to add them now or does anyone need a moment? Marjorie, 

please. 

DR. DORIME-WILLIAMS: I just wanted to ask a 

clarifying question. While I understand some of the issues 

around this particular individual as a nominee, is the 

committee sort of been not allowed to perhaps offer another 

name of a student who could be from a proprietary institution 

to serve or are we -- is the argument that we shouldn’t be 

making additional nominations at all?

MS. MACK: The committee members do have the 

right to make a motion to add someone to the committee and each 

one would be subject to a consensus check. Department, do you 

want to speak to the proprietary? Jennifer, I see your hand. 

Go ahead. 

MS. HONG: Yeah, I just, I just want to 

clarify that we’re not opposed to the institution from which a 

student comes from. I, I think we were, we didn’t set up the 
Negotiated Rulemaking 10/4/2021

67

category in that way nor did we think it was appropriate to do 

so. We thought it was more appropriate to gather independent 

students, dependent students, and student loan borrowers at 

large and that is what we did. And that’s what’s reflected 

here but, I mean, it’s, it’s not, it’s not that we were against 

getting a student from a proprietary institution, we just ended 

up with the students that we did. If that helps. 

MS. MACK: Thank you, Jennifer. David, I 

see your hand. 

DR. TANDBERG: Yeah, if we were to 

consider a different student, would they need to be prepared to 

join the committee today or, or is there any policy regarding 

adding someone and their ability to actually engage in the 

negotiations?

MS. MACK: If you reach consensus, that 

individual can join the committee immediately. That’s my 

understanding. 

DR. TANDBERG: My question is would they 

have to be able to join immediately?

MS. MACK: Jennifer, can you speak to that?

MS. HONG: There’s no, there’s no policy 

prohibiting -- I think the idea is that they are able to 

participate immediately if they’re, if they are available.

MS. MACK: Thank you. 

MS. HONG: But in their absence, the other 
Negotiated Rulemaking 10/4/2021

68

rules apply in terms of protocols. 

MS. MACK: Heather, please. 

DR. PERFETTI: Thank you. So, I just had a 

question. In what capacity do they join if we have identified a 

primary and an alternate, and the group determines consensus to 

consider another student, in what capacity would they be 

joining? 

MS. MACK: They would be joining the 

committee and would be part of the consensus decision-making for 

their constituency group. Daniel?

MR. BARKOWITZ: Thank you, Kayla. Just a 

quick procedural question. I know you were moving to a 

consensus check. If, if that, if we mean to move that 

direction, are we taking each of these as a separate item and is 

this is a check or a vote? I’m just trying, I’m trying to 

understand the difference between a consensus check versus a 

sort of a temperature check, what your intention was in that 

conversation. 

MS. MACK: If -- that's a great question. 

Thank you for clarifying this. We will absolutely do these 

separately and individually. And if I say consensus check or a 

vote, in my mind I am meaning those to be the exact same thing. 

So, if it’s consensus, it’s official. If it’s tentative 

agreement or I say temperature check for a tentative agreement, 

that would be unofficial. I’m suggesting that we move these to 
Negotiated Rulemaking 10/4/2021

69

an official consensus vote. Any other comments or questions? 

Heather, please. 

DR. PERFETTI: Thank you. So, I believe we 

talked about the first individual, Theresa Sweet. The second 

one is being proposed for what constituency group? Is it an 

additional constituency group not reflected or one of the 

current constituency groups?

MS. MACK: Persis, can you speak to that 

question?

MS. YU: Yes. I’m suggesting that we add a 

constituency group that’s the consumer advocacy community and 

that’s a, a seat that has historically been on the negotiated 

rulemaking table and I think that, while I appreciate the 

perspective that AGGs and students and my constituency have 

overlapping interests with consumer advocacy, I think that it is 

still an important constituency to add. I think that it is 

distinct. They have a broader sense of the consumer finance 

world as well as a lot of understanding about how that 

interplays with low-income communities and communities of color 

in particular. 

MS. MACK: Thank you, Persis. Heather, did 

that answer your question? Okay. Jaye, please. 

MS. O’CONNELL: So, my question builds a 

little bit on David’s. I feel like at a prior negotiation where

there were members added in person, the, the people were in the 
Negotiated Rulemaking 10/4/2021

70

audience and were able to, like they were present and ready to 

start. So, I think maybe my question is a little bit in this 

virtual world, where are those people? And are they ready to 

engage?

MS. MACK: Persis, [interposing] you are 

nominating?

MS. YU: Yeah. I, I can answer that. Ms. 

Sweet and Mr. Herbin are both watching virtually right now and 

ready and available to join. 

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

Persis. Jennifer, please. 

MS. HONG: Real quickly, Persis, I just also 

wanted to draw your attention that we did expand the state role 

here to include state oversight bodies. I don’t know if that 

displaces your concern here. And I also just wanted to clarify 

we’re looking at two, Persis is proposing two seats, one for 

[audio] for proprietary schools and a consumer advocacy seat. 

I’m just trying to clear what’s on the table. 

MS. MACK: That’s my understanding. Persis, 

can you confirm?

MS. YU: Yes. And, and I apologize. I 

wrote in students from propriety schools and I, I meant 

borrowers since we do have two students. But I think two 

borrowers is actually what I meant and Ms. Sweet is a borrower. 

And that’d be a more accurate description. 
Negotiated Rulemaking 10/4/2021

71

MS. MACK: Thank you. Justin, please. 

MR. HAUSCHILD: Yeah, thank you so much. I 

actually would just like some additional clarification on how 

ongoing litigation bars member’s participation. You know, it’s 

my understanding that in the past state attorneys general have 

been involved in the process despite having been involved in 

litigation and perhaps the distinction was already made but I’d 

just like clarification on what exactly are we distinguishing 

between a student here and, and or the borrower and state 

attorneys general. Thanks so much. 

MS. MACK: Jennifer, please. 

MS. HONG: Thank you, Justin. Again, as 

Brian describes, the prohibition applies across the board for 

all committee members in the past. If, if that occurred, we 

learn from the past, that it is a distraction and, you know, at 

worse, it, it’s -- there, there are other individuals that we 

could choose from that don’t have these outstanding lawsuits. 

And just to kind of keep our conversations, our negotiations 

above board, the prohibition applies across the board. Again, I 

think we’ve, may have, whether inadvertently, had that happen in 

the past. If that’s the case, we’ve learned from it now and it 

does, it applies across the board and it applies to the state 

attorneys general that we have on the committee today. 

MS. MACK: Daniel, please. 

MR. BARKOWITZ: I have a procedural question 
Negotiated Rulemaking 10/4/2021

72

again. So sorry. Process oriented. So, if there’s a nominee 

for a primary, does there also need to be a nominee for an 

alternate in that particular seat or can a primary be nominated 

without an alternate to serve? Is this a package deal or how 

does that, how does that function given that every seat has a 

primary and an alternate representative?

MS. MACK: That is a great question and to 

be fair, your protocols do not address specifically whether or 

not individuals be nominated and approved by consensus for both 

primaries and alternates. So, I’m going to defer to the 

Department based on your prior negotiated rulemaking, since we 

did not address it outright in the organization protocols here, 

if we do indeed add an individual, do we have to find an 

alternate for that respective individual in constituency group?

MS. HONG: I’m going to say no. 

MS. MACK: Okay. And, just to be clear, it 

is not required by the protocols either. Okay. Thank you. And 

thanks for the question, Daniel. Any other clarifying questions 

that have not already been asked? Is everyone -- Persis, 

please. 

MS. YU: Sorry. Just to, to say, I, I’ve 

been in, informed that if folks are willing to add the seat that

there are, that we may possibly be able to find additional, an 

additional nominee for this, the borrower seat. If we can do 

that this afternoon. But that there are additional people 
Negotiated Rulemaking 10/4/2021

73

watching who are, that they may be willing to stand in. 

MS. MACK: So, since that is going to 

require some further deliberation and isn’t -- why don’t we go 

ahead and take a consensus check on the individuals and their 

constituency groups as currently proposed? If, in the future, 

someone wants to move to add someone to the committee, we can 

address that at that time. Alright. Does anyone need any 

additional time before we take a consensus check? David, 

please. 

DR. TANDBERG: Yeah, I want to be clear. 

We’re voting now -- are we voting on the individual or the 

constituency group? If we’re voting on the constituency group, 

then that would preclude consideration of a different individual 

for that group, correct?

MS. MACK: Yes, it would. My intent was to 

vote on these individuals; however, if the committee would like 

to vote on the constituency group, we can in fact do that at 

this time as well. 

DR. TANDBERG: Okay. I prefer to vote on 

the individuals. 

MS. MACK: Okay. Thank you. Daniel?

MR. BARKOWITZ: And I return to a question 

about the student nominee. So, the Department is, has made its 

position clear on the, on the generalized nature of student loan

borrowers, is there a concern or -- I, I guess I would say I 
Negotiated Rulemaking 10/4/2021

74

have a concern that there are other groups that aren’t 

represented. Namely, for example, graduate students, career 

schools. So, I guess my question is, is -- Persis, if you can 

specify for me what, what sets this apart and elevates this 

above the need of other voices from other particular 

constituency groups? Do you have a -- is there a rationale that 

we should be considering?

MS. YU: So, I mean, I think this particular 

constituency is very important to have represented and 

highlighted. I would say that while, while I, I acknowledge 

that we do not have a main seat for all of these bodies that 

you’ve identified, I think there are many people around this 

table who do have graduate degrees, who have been graduate 

students but that the experiences of someone who has attended an

institution, who has been defrauded by their institution is 

fairly unique and I think that that, that that voice deserves to

be heard during this process when we are going to be discussing 

at extreme length different rules around those, around those 

particular issues. So, I think this is a particularly unique 

constituency that needs to be added. I think also these 

borrowers have experienced the, the administrative burdens of 

the current process and so that is also a fairly unique voice 

that is not being heard at this, at this table. So, I think 

that there is a particular reason why this particular 

constituency is, is relevant for this discussion. 
Negotiated Rulemaking 10/4/2021

75

MS. MACK: Jennifer. 

MS. HONG: Just real quick to respond to 

Persis. I just want, I just want to be sure also that you know 

that those concerns can go to a jury as well [inaudible] member 

and also I, I also want to be clear that we would not be able to 

vote for an individual that has a, an outstanding lawsuit 

against the Department. So, it would be, we would be voting 

against that individual if that’s the case. If that’s what’s 

playing, put forward. 

MS. MACK: Okay. At this time, I am going 

to move your committee to a consensus check vote. So, please 

get your thumbs ready. First, I want to specifically invite the 

committee to either approve and agree or not on the addition of 

Ms. Sweet, representing borrowers from proprietary schools. 

Specifically, for Ms. Sweet. Does the committee want to add her

to the committee or not? I need to see everyone’s thumb please. 

Thank you. She will not be added to this committee. Next, I 

would like to move you to take a consensus vote on Mr. Herbin on 

behalf of consumer advocates. Do we want to add this individual 

to your committee? Please let me see your thumbs. That 

individual will not be added to the committee either because we 

are not in consensus. I really appreciate your dialogue,

questions, and answers for that. 

We only have a few minutes before the lunch 

hour, so I would like to review with you our planned agenda for 
Negotiated Rulemaking 10/4/2021

76

this afternoon. The planned agenda was attached to the Departor published on the Department of Ed’s website at the link that 

we shared out, which has also been emailed out to you. This is 

our plan, basically, on the order in which we want to introduce 

topics to you. This afternoon, we will plan to begin with total 

and permanent disability discharge and then move into closed 

school discharge. Alright? Any questions about the agenda and 

the plan for this afternoon? Okay. We are four minutes until 

our lunch hour, so we may begin that a little bit early. We are 

going to start promptly back here after the hour, pick up with 

that very first issue. All of you have the ability to turn your 

screen or your cameras off. You do not, in fact, need to log 

out and back in during the lunch hour unless you choose to do 

so. Alright? So, this will -- David, please. You’re muted, 

David. 

DR. TANDBERG: Gosh, that’s going to happen 

a lot. 

MS. MACK: It is going to happen. 

DR. TANDBERG: My apologies. I thought we 

were going to consider someone else for the for-profit borrower 

position. Are we doing that later or? I don’t have one to 

nominate but, Persis, I thought that that perhaps you did. 

MS. MACK: It’s my understanding that we 

don’t have a specific nominee. 

DR. TANDBERG: Oh. 
Negotiated Rulemaking 10/4/2021

77

MS. MACK: But if and when that individual 

is determined, that we will discuss and address that again. 

Persis, is my understanding correct?

MS. YU: That was my understanding as well. 

MS. MACK: Okay. 

DR. TANDBERG: Okay. Very good then. Thank 

you. 

MS. MACK: No problem. Daniel, please. 

MR. BARKOWITZ: Thank you. I do have a 

question that was raised I think very well by Michaela. So, to 

the extent that there are some issues that you tied together, 

can we just return for a second to the consensus process? So, 

if, if for example the closed school discharge issue pertains 

later or has a connection later to borrower defense to 

repayment, are we going to take those as separate issues and 

attempt consensus by each or do we wait until the end of later 

conversations when back to that first issue?

MS. MACK: So, we are not going to group 

them together for purposes of consensus, okay? And at this 

time, we are really just introducing issues and beginning the 

conversation. If the committee felt strongly or indicated by 

tentative agreement that we are really close or on, on, on the 

right track, Daniel, at that time the facilitators may, in fact,

ask the group for a consensus check. We will not hold up one 

issue, at least asking you for a consensus check based on 
Negotiated Rulemaking 10/4/2021

78

another but I believe that it is likely before we reach 

consensus on these, we will at least have introduced, begun the 

dialogue and reviewed solutions on the other issues. We will 

continue to revisit each of these issues during each week of all 

three sessions. 

MR. BARKOWITZ: Thank you very much. 

MS. MACK: Mm-hm. Any other questions? 

Okay. I told you that you were going to get dismissed early for 

lunch but that didn’t, in fact, happen. Great questions. Thank 

you for your time and attention this morning. And we will see 

you all back here for this afternoon’s session. 
Negotiated Rulemaking 10/4/2021

79

1 STATE OF NEW JERSEY )

2 I, Pam Flores, Shorthand Reporter in and

3 for the State of New Jersey, do hereby certify that the above

4 and foregoing contains a true and correct transcription of the

5 public hearing that was held by the Department of Education

6 virtually on October 4,2021.

7

8

9 Certified by me this 4th day of October,

10 2021.

11

12

13 PAM FLORES

14 Precise Transcripts

15 45 North Broad Street

16 Ridgewood, New Jersey 07450

17 (201) 677-8496
Negotiated Rulemaking 10/4/2021

80

Appendix

Department of Education, Office of Postsecondary Education

Zoom Chat Transcript

Affordability and Student Loans Committee - Session 1, Day 1, 

Morning, October 4, 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 Emil - FMCS to Everyone:

Example: Jennifer, Student Loan Borrowers (A)

From Emil - FMCS to Everyone:

Example naming FYI: Jennifer, Student Loan Borrowers (A)

From Brady - FMCS to Everyone:

Feel free to email me at broberts@fmcs.gov with tech questions 

at aby time during the meeting.

From Jennifer - ED negotiator to Everyone:

I'm understanding that the feed might not be live? can we 

confirm?

From CEMS Production 4 to Everyone:

It is live and being monitored on 4 devices.

From Brady - FMCS to Everyone:

Feel free to email me at broberts@fmcs.gov with tech questions 

at any time during the meeting.
Negotiated Rulemaking 10/4/2021

81

From Brady - FMCS to Everyone:

Please visit 

https://www2.ed.gov/policy/highered/reg/hearulemaking/2021/ind

ex.html for registration links and relevant documents.

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

Theresa Sweet

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

students from proprietary schools

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

Jaylon Herbin

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

consumer advocate seat

From Dr. McTier (A) Priv. & Non-Profit to Everyone:

Don’t we have a student representing already?

From Dr. McTier (A) Priv. & Non-Profit to Everyone:

Got it thank you!