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U.S. Department of Education, Borrower Defenses and Financial Responsibility Negotiated Rulemaking

Summary of Meeting One – November 13 – 15, 2017

1

U.S. Department of Education

Borrower Defenses and Financial Responsibility 

Negotiated Rulemaking

Meeting Summary

November 13-15, 2017

Welcome

Kathleen Smith, Acting Assistant Secretary for Post-Secondary Education, on behalf 

of Secretary Betsy DeVos, welcomed the Borrower Defenses Negotiated Rulemaking 

Committee (“Committee”) and thanked them for agreeing to assist the Department 

in developing the proposed regulations.

Introductions

Committee members and facilitators introduced themselves. 

Overview of the Negotiated Rulemaking Process 

Commissioners Moira Caruso, Ted Bantle, and Rozmyn Miller, facilitators from the 

Federal Mediation and Conciliation Service (FMCS), explained the negotiated 

rulemaking process, consensus, and the roles of both the facilitators and the 

negotiators.

Review and Adopt Protocols

The Committee approved the organizational protocols, as proposed.1 Significant

discussion occurred in relation to Section 5E, specifically related to the level of public 

accessibility to the negotiations. The Committee was divided on whether to allow live 

streaming and other recorded media, with some members advocating for explicit 

Committee approval of live streaming and recording while others wished to prevent 

it. On day two, the Committee approved Section 5E as originally proposed with the 

understanding that the Department would have the sessions recorded, and the 

recordings made publically available. The Department strives to post the audio 

recordings in a 508 compliant format to its website within two weeks following the 

end of each negotiation session.

 

1 Updated to identify committee membership.
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U.S. Department of Education, Borrower Defenses and Financial Responsibility Negotiated Rulemaking

Summary of Meeting One – November 13 – 15, 2017

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Membership

Members of the Borrower Defenses and Financial Responsibility Negotiated 

Rulemaking Committee:

Community of 

Interest Primary Negotiator Alternate Negotiator

Students and Former 

Students

Joseline Garcia

President, U.S. Students Association

Stevaughn Bush

Student, Howard University 

School of Law

Consumer Advocacy 

organizations

Ashley Harrington

Special Assistant to the President 

and Counsel,

Center for Responsible Learning

Suzanne Martindale

Senior Attorney,

Consumers Union

Legal assistance 

organizations that represent 

students

Abby Shafroth

Staff Attorney,

National Consumer Law Center

Juliana Fredman

Bay Area Legal Aid

Groups representing U.S. 

Military service members or 

veteran Federal student loan 

borrowers

William Hubbard

Vice President of Government 

Affairs

Student Veterans of America

Walter Ochinko

Research Director,

Veterans Education Success

State attorneys general and 

other appropriate State 

officials

John Ellis

Principal Deputy General Counsel & 

Division Chief

State of Texas Office of Attorney 

General

Evan Daniels

Assistant Attorney General, 

Government Accountability and 

Special Litigation Unit, Office of 

the Arizona Attorney General

State higher education 

executive officers

Robert E. Anderson

President, State Higher Education 

Executive Officers Association

Accrediting agencies

Michale McComis

Executive Director, Accrediting 

Commission of Career Schools and 

Colleges

Karen Peterson Solinski

Executive Vice-President,

Higher Learning Commission

Financial aid administrators

Valerie Sharp

Director, Office of Financial Aid , 

Evangel University

Kimberly Brown

Vice President, Enrollment 

Management and Student 

Affairs,

Des Moines University

General counsels/attorneys 

and compliance officers

Aaron Lacey

Partner, Thompson Coburn LLP

Bryan Black

Attorney
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U.S. Department of Education, Borrower Defenses and Financial Responsibility Negotiated Rulemaking

Summary of Meeting One – November 13 – 15, 2017

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CFOS and business officers

Kelli Hudson Perry

Assistant Vice President for 

Finance and Controller, Rensselaer 

Polytechnic Institute

Dawn Robinson

Dean of Administration and 

Fiscal Services (CFO), Roanoke 

Chowan Community College

Minority serving institutions

Robert Flanigan, Jr.

Vice President for Business and 

Financial Affairs & Treasurer,

Spelman College

Lodriguez Murray

Vice President, Public Policy & 

Government Affairs,

United Negro College Fund

Two-year public institutions

Dan Madzelan

Associate Vice President for 

Government Relations,

American Council on Education

Barmak Nassirian

Director of Federal Policy 

Analysis, American Association 

of State Colleges and 

Universities

Four-year public institutions

Alyssa Dobson

Director of Financial Aid and 

Scholarships, Slippery Rock 

University

Kay Lewis

Assistant Vice-Provost, 

Enrollment Executive Director of 

Financial Aid and Scholarships, 

University of Washington

Private, non-profit 

institutions

Ashley Ann Reich

Senior Director of Financial Aid 

Compliance and State Approvals, 

Liberty University

Gregory Jones

President, Compass Rose 

Foundation

Private, for-profit 

institutions with an 

enrollment of 450 students 

or less

Mike Busada

General Counsel and Vice 

President, Ayers Career College

Chris DeLuca

Attorney at Law, DeLuca Law 

LLC

Private, for-profit 

institutions with an 

enrollment of 451 students 

or more

Michael Bottrill

CFO and CEO, SAE Institute North 

America

Linda Rawles

Rawles Law

FFEL Program lenders and 

loan servicers

Wanda Hall

Senior Vice President and Chief 

Compliance Officer, Edfinancial 

Services

Colleen Slattery

Federal Contract and 

Compliance Officer, MOHELA

FFEL Program guaranty 

agencies and guaranty 

agency servicers (including 

collection agencies)

Jaye O’Connell

Director of Collections and 

Compliance, Vermont Student 

Assistance Corporation (VSAC)

Sheldon Repp

Special Advisor and Counsel, 

National Council of Higher 

Education Resources

U.S. Department of Education AnnMarie Weisman

Federal Negotiator
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U.S. Department of Education, Borrower Defenses and Financial Responsibility Negotiated Rulemaking

Summary of Meeting One – November 13 – 15, 2017

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Petitions for Membership

 The Committee approved a petition to add Dr. Robert Anderson, 

representing the State Higher Education Executive Officers community of 

interest, to the Committee.

 The Committee approved a petition to add Dr. Julianne Malveaux to the 

Financial Responsibility Subcommittee.

 The Committee denied a petition to add Blake Harden to the Financial 

Responsibility Subcommittee. 

Finalizing the Agenda

The Committee approved the following eight issues, comprising the scope of issues 

it will negotiate:

1. Whether to establish a Federal standard for the purpose of determining if a 

borrower can establish a defense to the repayment of a loan based on an act 

or omission of an institution

2. Developing a regulatory framework for the process of submitting and 

evaluation a borrower defense to repayment claim

3. Financial responsibility and administrative capability

4. Pre-dispute arbitration agreements, class action waivers, and internal 

dispute processes

5. Closed school discharge

6. False certification

7. Guaranty agency collection fees

8. Whether to recalculate a borrower’s subsidized usage period and interest 

accrual, if applicable, when the borrower receives a discharge of a loan for 

which he or she has not received all or part of the educational benefit of the 

loan

All eight issues are further developed in the Issue Papers provided to the Committee 

by the Department prior to the meeting.

The Committee elected not to include the following issues, proposed by member 

Wanda Hall, in the agenda:

1. Administrative forbearance to collect and process supporting information

2. Administrative forbearance for timely recertification and recalculated IDR 

payments 

3. IDR after day 270 of delinquency

4. REPAYE payment application (Technical Correction)

5. Closed school discharge application when borrower fails to respond 

(Technical Correction) 
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U.S. Department of Education, Borrower Defenses and Financial Responsibility Negotiated Rulemaking

Summary of Meeting One – November 13 – 15, 2017

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Discussion of Issues

The Committee discussed the eight aforementioned substantive issues in detail.

Discussion of each topic began with the Department reviewing each issue paper and 

associated questions. Then, Committee members had the opportunity to pose 

additional questions as well as offer their interests, concerns, and preferences 

relative to each issue.

Additional Participants

During the three-day meeting, three non-negotiators addressed the committee:

 James Manning, Acting Under Secretary, U.S. Department of Education, at the 

request of the Committee, provided information regarding Department’s 

processing of existing borrower defense claims.

 John Kolotos, Subcommittee Chairperson, at the request of the Committee,

provided additional information regarding the nature and work of the 

Subcommittee.

 Remington Gregg, from Public Citizen, upon petition by William Hubbard and 

consensus approval by the Committee, provided comment on Issue #4 

related to pre-arbitration clauses, class action waivers, and internal dispute 

resolution processes. 

Public Comment

The Committee provided opportunity for public comment at the end of each 

day. Public comment was received on all three days of the meeting.

Next Meeting

The next meeting will be held on January 8 – 11, 2018 and is located at:

Union Center Plaza (UCP – FSA Learning Center)

Lobby Level

830 First Street, NE

Washington, DC 20002

Next Steps

The facilitators will distribute a draft summary of the first meeting, and a draft 

agenda for the next meeting. In addition, the Department will distribute draft 

regulatory text related to the issues discussed prior to the next negotiation. Any 

information that members want to share with the Department, or the Committee as 

a whole, should be sent to the facilitators. Additionally, any questions members have 

may be directed to the facilitators.

Committee members will communicate with others within their communities of 

interest to inform and get feedback from them.

Attendance

All members and alternates of the Committee were present for this session.