Negotiated Rulemaking – 11/7/23

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 DEPARTMENT OF EDUCATION

OFFICE OF POSTSECONDARY EDUCATION

NEGOTIATED RULEMAKING 

STUDENT DEBT RELIEF COMMITTEE

SESSION 2, DAY 2, MORNING

NOVEMBER 7, 2023

On the 7th day of November 2023, the

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

to 12:00 p.m.
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Negotiated Rulemaking – 11/7/23

P R O C E E D I N G S

MR. ROBERTS: Welcome and good 

morning, everyone to day two of week two of the 2023 

Department of Education Negotiated Rulemaking session. We 

have a packed agenda today, so would love to get right 

into it, beginning with a roll call. So, if the 

negotiators who joined us today want to get on camera, 

we'd love to announce you just for the record as well. 

So, representing civil rights organizations, we are 

joined by Wisdom Cole.

MR. COLE: Present.

MR. ROBERTS: And his alternate, India 

Heckstall.

MS. HECKSTALL: Present.

MR. ROBERTS: Representing legal 

assistance organizations that represent students or 

borrowers, we are joined by our primary negotiator, Kyra 

Taylor.

MS. TAYLOR: Good morning.

MR. ROBERTS: Good morning. And her 

alternate, Scott Waterman. We'll be waiting for Scott to 

join us. Representing state officials, including state 

higher education executive officers, state authorizing 

agencies and state regulators of institutions of higher 

education, we are joined by Lane Thomas, Thompson. Sorry.
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Negotiated Rulemaking – 11/7/23

MS. THOMPSON: No problem. Good 

morning.

MR. ROBERTS: Good morning. And their 

alternate, Amber Gallup, we believe will not be joining 

us today. Representing state attorneys general, we are 

joined by Yael Shavit.

MS. SHAVIT: Here.

MR. ROBERTS: Morning. And her 

alternate, Josh Devine.

MR. DEVINE: Here.

MR. ROBERTS: Morning. Representing 

public institutions of higher education, including two 

and four-year institutions, we are joined by Melissa 

Kunes.

MS. KUNES: Here.

MR. ROBERTS: And her alternate, J.D. 

LaRock. Okay, we might be waiting for J.D. to join us as 

well. Representing private, nonprofit institutions of 

higher education, Angelika Williams.

MS. WILLIAMS: Here.

MR. ROBERTS: Morning. And her 

alternate, Susan Teerink.

MS. TEERINK: Here.

MR. ROBERTS: Representing proprietary 

institutions, we are joined by Kathleen Dwyer.
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Negotiated Rulemaking – 11/7/23

MS. DWYER: Good morning.

MR. ROBERTS: Good morning. And her 

alternate, Belen Gonzalez.

MS. GONZALEZ: Good morning.

MR. ROBERTS: Good morning. 

Representing historically Black colleges and 

universities, tribal colleges and universities and 

minority serving institutions, our primary negotiator 

Sandra Boham will not be joining us this morning, but we 

are joined by her alternate standing in this primary, 

Carol Peterson. I saw Carol.

MS. PETERSON: Good morning.

MR. ROBERTS: Good morning, Carol. 

Representing Federal family education loan lenders 

servicers or guaranty agencies, we are joined by Scott 

Buchanan.

MR. BUCHANAN: Here.

MR. ROBERTS: Morning. And his 

alternate, Benjamin Lee.

MR. LEE: Here. Morning.

MR. ROBERTS: Morning. Representing 

student loan borrowers who attended programs of two years 

or less, we are joined by Ashley Pizzuti.

MS. PIZZUTI: Here.

MR. ROBERTS: And her alternate, David 
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Negotiated Rulemaking – 11/7/23

Ramirez.

MR. RAMIREZ: Hello.

MR. ROBERTS: Hello. Representing 

student loan borrowers who attended four-year programs, 

we are joined by Sherrie Gammage.

MS. GAMMAGE: Here.

MR. ROBERTS: And her alternate, Sarah 

Christa Butts.

MS. BUTTS: Present.

MR. ROBERTS: Representing student 

loan borrowers who attended graduate programs, we are 

joined by Richard Haase.

MR. HAASE: Good morning.

MR. ROBERTS: Good morning. And his 

alternate, Dr. Jalil Bishop.

DR. BISHOP: Here.

MR. ROBERTS: Representing currently 

enrolled postsecondary education students, we are joined 

by Jada Sanford.

MS. SANFORD: Here.

MR. ROBERTS: And her alternate, 

Jordan Nellums. We might be waiting for Jordan to join 

us. Representing U.S. Military service members, veterans 

or groups representing them, we are joined by our primary 

negotiator, Vincent Andrews.
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MR. ANDREWS: Here.

MR. ROBERTS: Representing consumer 

advocates, we are joined by Jessica Ranucci.

MS. RANUCCI: Good morning.

MR. ROBERTS: Good morning. And her 

alternate Ed Boltz.

MR. BOLTZ: Good morning, present.

MR. ROBERTS: Good morning. 

Representing individuals with disabilities or groups 

representing them, we are joined by John Whitelaw.

MR. WHITELAW: Morning.

MR. ROBERTS: Morning. And his 

alternate, Lakisha Wilkerson.

MS. WILKERSON: Present.

MR. ROBERTS: Last but not least, we 

are joined by several members of the Department of 

Education's Office of General Counsel, Soren Legaard.

MR. LEGAARD: President.

MR. ROBERTS: We are also joined by 

Brian Siegel.

MR. SIEGEL: Present.

MR. ROBERTS: And Toby Merrill.

MS. MERRILL: Present.

MR. ROBERTS: And, of course, our 

Federal negotiator on behalf of the Department, we are 
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joined by Tammy Abernathy.

MS. ABERNATHY: Here.

MR. ROBERTS: Alright. Is there any 

old business or business to take care of at the top of 

the hour from the Department's perspective, or are we 

okay to jump right into the substantive matter of today's 

discussion?

MS. ABERNATHY: I believe we're ready 

to just jump right on in.

MR. ROBERTS: Excellent. Alright. With 

that, I will turn it over to the Department's screen 

sharers to walk us through the regulatory text that we're 

going to kick off today's discussion on.

MS. ABERNATHY: Wonderful. Welcome 

back, negotiators. Let's just jump right on into the 

discussion. You see the information on the screen so we 

will first start with paragraph F and then go to G. 

Having just a tad bit of technological difficulties this 

morning. Bear with me. The idea behind these two 

provisions is that we have two ways that either a program 

or an institution could lose access to Federal aid based 

upon the outcomes of its students, gainful employment and 

cohort default rates. Both these items provide critical 

protections to students from programs or institutions 

that fail to give borrowers the tools they need to 
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Negotiated Rulemaking – 11/7/23

succeed. But while they protect future borrowers, they do 

not currently address what happens to the borrowers whose 

debts, earnings or default rates show they are 

struggling. This language would provide relief for the 

borrowers who attended programs whose results indicate 

the need to cut these programs or institutions, cut the 

programs or institutions off going forward. One thing to 

know at the outset, this is about relief for borrowers, 

not additional consequences for institutions or programs. 

Because these debts are being waived, there's no 

liability to establish or recoup against a school. 

Turning to the text itself, paragraph (f) (1) describes 

how this waiver provision applies to loans received for 

GE programs if certain conditions are met. First, the 

program must have failed the applicable debt to earnings 

or earnings premium measures in two of three consecutive 

years. This aligns with the GE rules framework for 

determining continued Title IV support. Second, for 

borrowers who attended these GE programs may be eligible 

in two types of situations. They may have graduated 

during the program year that resulted in the failing 

rate, meaning their own data was used to calculate the 

failing rate. Alternatively, the Department has proposed 

texts to include non-completers who dropped out of a 

program but who had they persisted, likely would have 
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Negotiated Rulemaking – 11/7/23

been part of the cohort that had failing measures. The 

proposed text includes these borrowers by considering the 

degrees standard program length, and then includes 

borrowers that withdrew during that time. It is important 

to note that there are some data limitations associated 

with including non-completers. The Department may not 

have reliable program level information prior to award 

year 2015. As such, there may be a limitation in 

identifying students enrolled in programs who dropped out 

from award year 2014 and earlier. We wanted negotiators 

to be aware of this constraint. As a final note, a 

borrower would not be eligible if, after the new GE rule 

goes into effect, they submit an acknowledgment that 

their program has failed the Department's accountability 

standards based on their poor debt or earnings outcome. 

Next paragraph, (f) (2) addresses the method for 

calculating the failing debt to earnings and earning 

premium rates. Once the Department's new financial value 

transparency regulations go into effect, the Department 

can use the method and information specified in that rule 

for the applicable award years. The Department has also 

proposed performing calculations for years where it has 

reliable program level data to perform debt to earnings 

and earnings premium measures. Specifically, the 

Department has proposed performing calculations for 
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Negotiated Rulemaking – 11/7/23

cohorts dating back to 2015. However, for these prior 

years, there are some data limitations and so the 

Department proposes using similar but different metric 

definitions. The precise text and method is forthcoming. 

It will be shared a week before the next session. And so,

this piece is not the focus of today's discussion. 

Turning now to paragraph (g). The cohort default rates. 

The reasoning here is similar. The Department also 

measures an institution's cohort default rate as an 

eligibility and accountability measure. For an 

institution lost or loses Title IV eligibility because 

their cohort default rate exceeded statutory or 

regulatory thresholds. Borrowers who are part of those 

cohorts would be eligible for relief. As we open it up 

for discussion, I'll note that since this is an area that 

is particularly complicated, there may be others from the 

Department who will weigh in and respond to your 

questions and feedback. In particular, the Department 

would be interested in negotiating feedback on the 

question of how should the Department treat borrowers and 

cohorts that have failing rates for one year but do not 

ultimately become ineligible for Title IV support? The 

current proposed text does not include these borrowers, 

but we are interested in hearing your feedback on this 

and other issues. I'll turn it back over to Brady now and 
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we can stop screen sharing.

MR. ROBERTS: Alright. Thank you, 

Tamy. Folks, as always, you're invited to use the raised 

hand feature to be recognized for three minutes. And of 

course, we always appreciate when folks drop questions, 

propose texts, etcetera into the chat as well. Kathleen, 

on behalf of proprietary institutions, go ahead.

MS. DWYER: Thank you. You know, the 

Department and several of the negotiators have made 

really great points that these regulations should be more 

accessible for borrowers and simpler to understand. So 

specific to the part that we just reviewed, how would a 

borrower actually avail themselves to this type of 

relief? Is the Department going to be performing these 

calculations and then proactively notifying borrowers of 

their eligibility? Yesterday's conversation, the 

Department mentioned some things where being 

administratively burdensome to calculate. So, it's 

unclear to me how this element of the regulations would 

be utilized. And the concern that I'm raising is not from 

the school's perspective, but how the regulation would 

actually be communicated and applied to an individual 

borrower? I additionally have a question about those who 

withdraw and later enroll in another program. How would 

their total debt load be treated in that regard?
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MR. ROBERTS: Kathleen, I'm not seeing 

an immediate reaction from the Department, would you mind 

posting both of those questions in the chat? I apologize.

MS. DWYER: Yes.

MS. ABERNATHY: Brady? I'd like to 

just mention that we would be notifying borrowers, not 

having them to apply. And these calculations we already 

do. So, I think that's already part of some of the 

things. So hopefully that answers your question or 

questions.

MS. DWYER: Yeah. Just making sure 

that the borrower- it's very complex. So, if the borrower 

had to look at this and interpret it, I think that would 

be difficult to navigate.

MS. ABERNATHY: Yes. Again, we'll be 

notifying those borrowers. So hopefully that will 

mitigate that issue. Thanks so much for bringing that up.

MR. ROBERTS: Ashley Pizzuti.

MS. PIZZUTI: Yes. How does this new 

language and policy tie in with Borrower Defense? Is 

Borrower Defense to repayment being used as one of the 

calculations in determining gainful employment, 

especially for those going back prior to 2015? I know a 

lot of Borrower Defense applications are standing for 

those years. I'm just wondering if Borrower Defense is 
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being used as part of the calculation.

MS. ABERNATHY: No, it's not the same 

thing. And that's now how Borrower Defense works. So,

these would be two separate things. Separate and apart 

from each other.

MR. ROBERTS: Kyra.

MS. THOMPSON: So, I'd just like to 

share our enthusiasm for this proposal. Legal aids for 

gosh, going on a decade, have been asking that there be a 

relief component to the gainful employment school 

accountability regulations. And so, we're really excited 

to see this proposal here. With regards to the question 

of how the Department should treat borrowers who were in 

a cohort where there was only one year, instead of 

meeting the required two years within a three-year 

consecutive period. We urge the Department to provide 

relief to those borrowers as well. Regardless of what 

happened to the school, those borrowers were still within 

a cohort of folks where it was obvious that they did not 

receive an education that prepared them to repay the debt 

that they took on. So, we strongly encourage the 

Department to expand the eligibility criteria here.

MS. ABERNATHY: Kyra, if you would be 

so kind as to put that in the chat. And also take note of 

our proposed regulatory text. If you have any amendments 
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to that, go ahead and give us that in red line. That'd be 

very helpful. Thanks so much.

MR. ROBERTS: Thank you, thank you. 

Jessica Ranucci, please.

MS. RANUCCI: Thanks. I want to echo 

what Kyra said. I think that this proposal provides very 

important, much needed relief to many people. I want to 

speak specifically about what I understand to be one of 

the Department's motivations behind this provision is 

that certain borrowers would not be able to continue 

their studies using Title IV aid because either due to 

the cohort default rate or the financial calculations, 

the borrowers would be unable to continue to receive aid. 

I think this principle is really important and want to 

uplift to the Department that there may be other 

situations in which borrowers’ program or institution 

loses access to Title IV aid, and I would strongly 

encourage the Department to include that in their 

regulations. Perhaps it's sort of one higher level of 

generality than this, including other circumstances. I 

think one particular circumstance I'm familiar with is 

loss of accreditation. So, if an institution or 

theoretically I think a program loses institutional or 

programmatic accreditation that's required for receipt of 

Title IV, I think that would also be an appropriate use 
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of the Department's waiver authority for a low value 

program. But would the Department take proposed language 

about that?

MR. ROBERTS: You're off mute now, go 

ahead, Tamy.

MS. ABERNATHY: Sorry, guys. I'm 

having a little bit of difficulty here. We would 

definitely look at that language, Jessica. So, we 

strongly encourage you to not only put that in the chat, 

but to also propose that amendatory text and I believe 

had the date wrong. It's November 14th, not the 17th. For 

those of you that don't know me, I sometimes can't do 

math and I sometimes can't tell what day it is on the 

calendar. So, it is the 14th. So, a week from this 

Tuesday, if you'll provide that information to us, that'd 

be super helpful.

MR. ROBERTS: Yeah, go ahead, Kyra.

MS. TAYLOR: I would just like to jump 

back in and say, we strongly, strongly support Jessica's 

proposal and the expansion of folks who attended schools 

that were poorly performing schools. As she noted, there 

are other indications that these schools were poorly 

performing, and those borrowers are equally entitled to 

relief here. And so, again, I strongly support Jessica's 

proposal.
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MR. ROBERTS: Thank you. Kyra. Yael, 

please.

MS. SHAVIT: I do as well. And I go so 

far as to say that, generally speaking, I think the loss 

of accreditation is a great example. But I think 

generally a loss of Title IV eligibility should, in and 

of itself, be sufficient to entitle borrowers to the 

waiver that the Department is envisioning. So, we support 

Jessica's proposal as well. And in fact, broadly.

MR. ROBERTS: Thank you. Melissa 

Kunes, go ahead.

MS. KUNES: Thank you. And I also want 

to echo that I do support and praise the Department for 

including this language in the provision. And I do have a 

question for my own personal clarification and maybe for 

the clarification of this group when the reference to the 

word loan is used, is that implied that that includes 

both the principal borrowed and all accrued interest?

MS. ABERNATHY: Yes, it does.

MS. KUNES: Thank you.

MS. ABERNATHY: Yes, Ma'am.

MR. ROBERTS: Thank you all for your 

comments. Yeah, Lane.

MS. TAYLOR: I have a question more 

than a comment. I'm wondering, looking at romanette 2 for 
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award years 2015 to 2022, and any subsequent award year 

where the Secretary does not calculate GE rates. I'm 

curious if this would be applied to folks who had loans 

previous to 2015 in any way, or if we're just kind of 

looking at these most recent seven years?

MS. ABERNATHY: Lane, would you go 

ahead and put that in the chat for us? And we'll try to 

circle back as soon as we're able to respond to that one.

MS. TAYLOR: Thank you.

MS. ABERNATHY: Yes, ma'am.

MR. ROBERTS: Kyra.

MS. TAYLOR: One question I do have 

about this language is the provision in (f) (3) that the 

borrower needs to have not submitted an acknowledgment 

form under 668.605. We would ask that the Department 

strike this requirement to be eligible for waiver here. 

In part because it creates a lot of administrative burden 

on the Department to verify whether or not these 

borrowers submitted this form or did not submit this 

form. And also, we're aware of schools where the school 

may have fabricated the form for the borrower, and so 

they may not, in actuality have submitted the form in the 

first place. So again, we would ask that the Department 

consider striking this language.

MR. ROBERTS: Kyra, would you mind 
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just posting that in the form of a comment in the chat as 

well? Just so we have that captured. Thank you. Jessica.

MS. RANUCCI: I second what Kyra said. 

I have a lot of concerns about the attestation form being 

used as a barrier to relief, both from a policy 

perspective and administrability perspective. The 

question I was going to ask, though, was different. I 

noticed that sections (f) and (g) use the phrase may 

waive repayment, whereas (b) through (e) use, I think, 

language along the lines of the borrowers outstanding 

balance. Is that supposed to be a different thing, and if 

so, could you explain what the difference is?

MS. ABERNATHY: Not at this time.

MR. ROBERTS: Yeah, I was gonna say, 

if you want to post that as a question.

MR. LEGAARD: Yeah, we'll take that 

one back. Thanks, Jessica.

MR. ROBERTS: Any new comments or 

suggestions for the Department's on sections (f) or (g)? 

Not seeing any hands raised immediately. Oh, spoke too 

soon. Jalil, please go ahead.

DR. BISHOP: Just a clarifying 

question around the may waive repayment that's in the 

regulatory text. Is this- and I'm just curious why the 

may? I know we talked about this a little bit more in 
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that a part of this was trying to just clarify. But is 

there also space for this to be the Secretary, you know, 

is required to waive if these following conditions are 

met rather than may waive? That's just a question to the 

Department.

MR. ROBERTS: Yeah, and not seeing an 

initial response, Jalil. If you wouldn't mind again, 

posting that as a question.

MS. ABERNATHY: Brady, would you ask 

him to repeat that question? I want to make sure I.

DR. BISHOP: Yeah. So, for example I'm 

looking at under the gainful employment part (f), it says 

the Secretary may waive repayment if the following 

conditions are met. And I'm wondering if there is a 

benefit and a value add to having that be the Secretary 

is required to waive repayment if the following 

conditions are met. I think the may part for me seems to 

suggest some of what I already know. Borrowers go through 

where you go through these processes, and you still don't 

know on the back end if you're actually going to get the 

discharge that all the conditions suggest you're legally 

entitled to.

MS. ABERNATHY: So typically, we do

not tie our hands and regulate ourselves by saying the 

Secretary will or the Secretary must we use the 
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terminology the Secretary may. And that is very 

inclusive. The Secretary may exercise his authority in 

this condition. So, it doesn't mean, you know, we just 

don't typically regulate ourselves. So, we use the words 

may.

DR. BISHOP: And is there- and what's 

the consequence of regulating yourself? So, if I say will 

instead of may, what's the consequence of that?

MS. ABERNATHY: I'm not sure why we 

would want to tie the Secretary's hands in any capacity.

MR. LEGAARD: Yeah. And Jalil, just to 

speak to that a little bit, too, and building off of what 

Tamy said. So, we are- this is discretionary authority, 

right? This is under our compromise and waiver authority.

And we feel like in a legal position, right, because it 

is discretionary authority that we can't then make it 

compulsory. So, we're regulating- so that's why you're 

seeing the mays in this space. But a great question.

DR. BISHOP: I mean, that clarifies. 

Yeah, I mean, my goal is not to try to limit what happens 

here, but it is trying to understand how it can be more 

guaranteed to borrowers.

MR. LEGAARD: And that's just our 

general practice here. Yeah.

MR. ROBERTS: Any additional 
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questions, comments suggestions for Department's on 

gainful employment or cohort default rate? Tamy, seeing 

no hands raised at this time, I'll happily turn it back 

over to you as to where you'd like to steer the 

conversation next.

MS. ABERNATHY: What I would really 

like to do, Brady, is take a few minute break to resolve 

some of the behind-the-scenes technological issues that 

I'm having. If that's okay?

MR. ROBERTS: That's fine by me. 

Should we say we'll reconvene- it's a little after 10:30 

now. Do you want to say at 10:45? So about 12,13 minutes?

MS. ABERNATHY: And how about 10:50?

MR. ROBERTS: 10:50. I'm a hard 

bargain. Alright.

MS. ABERNATHY: Thanks much.

MR. ROBERTS: Alright. You can go 

offline, and we'll resume at 10:50. Welcome back 

everyone. Hope you enjoyed that brief break. Think before 

we move to our next topic which would be a discussion on 

hardship. I do just want to ask one more time if there's 

any additional comments, feedback, suggestions at all for 

the Department on low financial value programs. Yael, 

please.

MS. SHAVIT: Thanks. Did want to just 
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chime in about removing and I'm sure they'll be proposed 

regulatory text to this effect but removing the 

requirement that a borrower submit the acknowledgment. 

I'll say, you know, from the broader consumer protection 

perspective that we see across a lot of areas, but this 

one included, we have very serious concerns about the 

ability of institutions to manipulate these types of 

forms. And often borrowers won't understand what they're 

signing at all. This is a, you know, an issue raised 

during the gainful neg reg as well, so it won't be new to 

anyone. But think particularly in the context of what the 

Department is trying to do in the context of this neg reg 

separate and apart from the purpose of the gainful 

employment rule, this doesn't serve a meaningful purpose 

here at all, and in fact would only result in borrowers 

who should be getting relief, being deprived of relief 

because of the misconduct of their of their schools.

MR. ROBERTS: Thank you, Yael. We have 

Ashley next, but I just want to note that we have Ed 

coming in on behalf of consumer advocates and Jalil 

coming in on behalf of graduate student loan borrowers. 

So, Ashley, go ahead.

MS. PIZZUTI: I'm going to agree with 

less paperwork is better. From my experience and I know 

Borrower Defense does not apply to this but just two 
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things from personal history. One, having the schools 

self-regulate and report gainful employment, I know from 

my personal experience and thousands of people that I 

represent that schools, you know, if they're defrauding 

their students and they're not providing high level 

education, they're going to be reporting any employment. 

I know personally, my school, Brooks Institute, was shut 

down in 2016 after the last gainful employment rules came 

out. Prior to that, were reporting any job. So, if a 

student leaves their program and they call and say, hey, 

are you employed and they're working at Starbucks making 

minimum wage, they're reporting them as employed. They're 

not gainfully employed within the program that they have 

now taken on massive debt for. I also know the 

Department's failure in Borrower Defense in filling out 

applications and the backlog that it has created for 

many, many, many years. Getting people to acknowledge 

that their paperwork and getting them educated and up to 

speed on what they are filling out is problematic. I know 

that the backlog that it's going to create for the 

Department of Education is going to create years and 

years before any of these people see any kind of relief. 

We know- I filled out Borrower Defense in 2015. And it 

was only the Sweet versus Cardona lawsuit that is taking 

care of my loans, and even acknowledged that I had filled 
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out this paperwork. They're still working on years and 

years and years of backlog of paperwork. So, to make that 

a requirement for people when they shouldn't have the 

burden of this debt on their plate is, you know, 

absolutely ridiculous. That should not be a part of this.

MR. ROBERTS: Thank you. Jalil.

DR. BISHOP: Thank you. I think what I 

want to add to this conversation is for us to really 

consider the borrowers who are not covered by gainful 

employment are not covered by some of the conversation we 

have had so far, and think a part of this conversation 

really has to consider how do we include borrowers under 

this general principle that seems to be underlying the 

Department's, you know, guiding question for today is 

really what do you do about a borrower who attended 

higher education and did not get the benefit of taking on 

that student debt, did not get the benefit of paying for 

not just the cost of college, but also the interest and 

the consequences of having to carry increasingly growing 

student balances over time? And right now, the GE rule 

captures and provides relief in a much-needed way. But 

there are still many borrowers who attended nonprofit 

institutions that are not covered under GE who have had 

experiences taking student debt, where they haven't 

received that benefit. And so far in this conversation 
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from the 25 years to the conversation today, we haven't 

really carved out a place for the borrower who has debt 

and no degree. The borrower who has tried to continue, 

particularly Black and brown borrowers, to take on more 

debt, to have social mobility and they have not received 

that benefit. So I'm trying to understand where in this 

conversation we're going to really zero in to talk about 

borrowers who are experiencing hardships and not continue 

to have the Department push a level of burden from a 

borrowers having to prove that they were poor, having to 

prove that they read every form that was dropped in front 

of them by institution. I think so much of this 

regulatory text is not capturing the underlying principle 

that we have many borrowers who took on debt that has 

crippled their life opportunities and life pathways, and 

this regulatory text is creating more burden and asking 

us to trust the Department that as Ashley just 

articulated, she had to go through a process of being a 

part of a lawsuit to get her entitled relief. And I 

think, again, we need to keep bringing this conversation 

back to how do we make it automatic, how do we make it 

easier, and how do we expand that principle of we have 

borrowers who took on student debt and have not received 

relief? And how do we have that flow throughout the 

regulatory text and the categories of relief here and not 
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Negotiated Rulemaking – 11/7/23

just isolate that? So again, let's not ignore the history 

of the burden and the hiccups and the mistakes and the 

policy failures that have happened so far, let's create 

something going forward that really highlights and 

provides broad relief to, again, borrowers who have debt 

and have not received the benefit from their education. 

And we can, I think in a lot of evidence and a lot of 

ways have already documented that. And I just want to 

push for that to be a little bit more in this 

conversation, for the Department to strongly consider 

that in revisions of this regulatory text.

MR. ROBERTS: I know the Department 

wants to respond to a few points raised, but I do want to 

get to Ed first.

MR. BOLTZ: You can go- do you want to 

go ahead? This is important enough that you should 

respond to him first I'd say.

MR. MILLER: So just to make sure 

because I think there's a fair amount of confusion here. 

Gainful employment is not an application based process. 

Essentially, what occurs is we have a list of students 

where we use our own data. The school indicates what 

program they're in as part of an ongoing piece. We 

calculate the earnings information and the debt 

information. The only sort of added things the school 
27

Negotiated Rulemaking – 11/7/23

gives us in that regard would be sort of private loan or 

institutional loan amount we capture in our systems, but 

we use our own data to make these determinations. And so,

there's not an application type thing we're discussing 

here. We're talking about using administrative ED data to 

identify these individuals based upon the records we 

have. That's partially why you see a discussion about, 

you know, having limitations on the data here. So, issues 

being raised about job placement rates and all of that 

are completely irrelevant to what we're discussing here. 

This is really about what we have in our own records to 

identify people. And as you saw some of the earlier 

questions, once we identify those folks, we would be able 

to notify them, give them the opt out, etcetera. So, I 

think there's just a little bit of a knowledge gap that 

we're talking about here. But this is really about data 

we have in our possession, making the calculations using 

administrative data, identifying who's eligible, things 

of that nature. And then just as a reminder, the next 

topic, which we will have extensive amounts of time for, 

is all about other areas related to hardship.

MR. ROBERTS: Thank you, Ben. And I'll 

turn it over to you now.

MR. BOLTZ: Thank you. I know that 

we'll be talking later, you know, when we get to the 
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Negotiated Rulemaking – 11/7/23

hardship questions, we'll be comparing and contrasting 

that with what's going on in bankruptcy cases. But wanted 

to add an additional comparison when it comes to the idea 

that there should be an acknowledgment that there wasn't 

a waiver or an attestation for the GE. Because in 

bankruptcy cases, waivers discharge are almost 

universally unenforceable because otherwise it's the 

least reputable lenders and institutions that would take 

advantage of consumers by forcing those into boilerplate 

language. The only times they're enforceable is when 

there's been a specific determination by a bankruptcy 

court that is in writing, that is signed separately by 

the debtor that is came after they sought relief and that 

it's reasonable. I don't think that the Department of 

Education should place a much lower standard for GE than 

there is in bankruptcy cases, because, again, it would be 

the made obligatory by the least reputable and most 

abusive lenders and institutions, and buried in paperwork 

where the borrower never realized the rights that they 

were giving up, because at the time they were full of 

hope and promise without recognizing the lies that they 

were subject to. Thank you. I'll put that in the chat 

also for you.

MR. ROBERTS: Thank you, I appreciate 

that. Anything else on gainful employment and cohort 
29

Negotiated Rulemaking – 11/7/23

default rates. If not, you can turn it right over to the 

discussion on the seven questions that were distributed 

on hardship. But I just want to give the negotiators one 

final opportunity to offer additional feedback for the 

Department. Thank you all. Tamy, do you want to move 

right ahead to that discussion?

MS. ABERNATHY: Yes, sir. Thank you, 

Brady. As we noted.

MR. ROBERTS: Oh, sorry to interrupt 

you.

MS. ABERNATHY: Alright. As we noted 

earlier, the fifth issue, hardship, is an area where more 

information is needed. Despite the important conversation 

during the first session and this morning's session. We 

provided the issue paper that summarizes the discussion 

from the first session and highlights some additional 

questions for discussion and consideration, as Brady 

mentioned. While I do not plan to read through the 

summary of the first session, you can see we have a lot 

of ideas and suggestions from negotiators for discrete 

categories of borrowers in this paper. We know we did not 

capture everything said during that discussion, but we 

want to use the bulk of our time on the new discussion 

questions. I would like to highlight some general themes 

before we get into the actual discussion questions. 
30

Negotiated Rulemaking – 11/7/23

First, for all these items, we're interested in hearing 

about concrete data, research studies, etcetera. That 

would be useful. Second, the Biden-Harris Administration 

has done work around bankruptcy standards, and we thought 

using that as a starting point for some consideration 

around what elements of that might be useful here and 

that would also be good. It's important to think about 

hardship in relation to how it is not addressed by other 

programs, especially Income Driven Repayment. Fourth, and 

finally, we are very cognizant of what is feasible for 

implementation. How would that look here, both in terms 

of the burden on the borrower as well as Department 

resources? So, thinking about simplicity and what data 

are available or easily accessible is extremely 

important. With that, Brady will turn it over to you guys 

for discussion.

MR. ROBERTS: Alright. Thank you. 

Glancing at the questions, would it make the most sense 

to take them one at a time, given that this is a fairly 

wide discussion, or is there a preference on how you'd 

like to solicit feedback?

MS. ABERNATHY: I think it would be 

appropriate to do one at a time.

MR. ROBERTS: Okay.

MS. ABERNATHY: Thanks.
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MR. ROBERTS: With that, folks, I'm 

looking at question one on the issue paper that was 

distributed. Any feedback for the Department on question 

one? Yeah, Kyra.

MS. ABERNATHY: Can I just interrupt 

for a second? Brady, we think it would be best if you did 

read the question beforehand so that we could get it on 

official record.

MR. ROBERTS: Oh, sure, I can do so.

MS. ABERNATHY: Thank you. Sorry, 

Kyra.

MR. ROBERTS: That's alright. So,

question one applying a standard used in providing 

student loan discharge to the bankruptcy of the 

Department's regulations would require the Department to 

establish a standard for review. At present, bankruptcy 

discharges are governed by an undue hardship standard, 

which courts have interpreted using the Brunner test or 

another similar test called Totality of the 

Circumstances. This relies upon three factors. One, being 

unable to maintain a minimum standard of living, two the 

financial circumstances are unlikely to change, and three 

there's been a good faith effort to repay their loans. 

While a hardship process under the Higher Education Act 

need not be subject to the same test, these standards may 
32

Negotiated Rulemaking – 11/7/23

be informative of the considerations other policymakers 

have used to identify hardship. Given that which 

elements, if any, of these undue hardship considerations 

of this undue hardship consideration would be appropriate 

to adopt here. How can they be assessed in a manner 

consistent with the Department's limited capacity for 

individualized review? Kyra, did you want to- I saw that 

you lowered your hand. Did you want to?

MS. TAYLOR: I'm going to let Ed kick 

us off.

MR. ROBERTS: Okay. Ed, go ahead.

MR. BOLTZ: Sure. So, I guess as a 

bankruptcy attorney, I would like to kick off by you 

mentioned the Brunner task, you know, and there's a 

lively debate about whether it's Brunner or Brunner, but 

nobody really knows. But, you know, I think some 

background about where that test came from is, I think, 

very helpful to show how that it's not something that the 

Department of Education could be bound by outside of 

bankruptcy courts and the bankruptcy code. When Miss 

Brunner finished her master's degree in the mid-1980s, 

student loans were dischargeable if they'd been in 

repayment for a period of five years, or if you filed a 

chapter 13, they were automatically dischargeable. 

Otherwise, if you wanted your student loans dischargeable 
33

Negotiated Rulemaking – 11/7/23

sooner, you had to meet this undue hardship test, which 

as you described was the past, present and future 

analysis as I describe it to my clients more simply. At 

that time, Miss Brunner had $9,000 of student loan debt, 

which with inflation is probably greater than it sounds 

today but was still not a substantial amount and she'd 

been in repayment for all of six months because she had 

not yet found a job. So, the standard that was put in 

place and that grew from there was for a borrower who had 

barely tried to repay her student loans and could have 

found other means of discharging those in bankruptcy much 

more easily. So, you know, from there, over the past 35 

to 40 years, we've seen the courts increasingly tighten 

those down. Until only last year in November, the 

Department of Education, working with some limitations 

put on it by the Department of Justice, came out with the 

student loan adversary guidance that would liberalize 

that discharge through stipulations without changing the 

law, which Congress has not been able to adequately 

address itself. I would at this point, I would hope that 

the Department of Education could, in order to help us 

better analyze how successful with nearly one year on 

that guidance was issued on November 17th. So, we're 

almost to the one-year anniversary. If the Department 

could provide us some data, and I'll post that in the 
34

Negotiated Rulemaking – 11/7/23

chat for how successful or unsuccessful that been over 

the last year for getting bankruptcy discharges, which 

has been a higher standard, a more burdensome process, 

because debtors, when they file bankruptcy, are subjected 

to a much greater scrutiny regarding all of their 

finances than the Department of ED has expressed any 

interest in for these other alternatives. But think it 

does help- would help us evaluate how successful that has 

been, both for this process and also for evaluating 

whether it's been a successful process that has been 

instituted. I'll post those questions in the chat rather 

than reading those.

MR. ROBERTS: The questions as well as 

the data requests. Thank you. Alright, Kyra did you still 

want to, yeah go ahead.

MS. TAYLOR: Yeah. That's great, Thank 

you. So, like Ed mentioned, the bankruptcy standard has 

been exceedingly difficult for many borrowers to meet. 

And it's not- the undue hardship standard is not the 

appropriate standard to apply in this context. However, 

there are some principles that are raised in the 

bankruptcy guidelines that might be helpful. One of which 

is that the bankruptcy guidelines set the current ability 

to pay at whether the borrower can afford to pay under 

the standard repayment plan. The Department could use 
35

Negotiated Rulemaking – 11/7/23

that to provide certain thresholds to determine who 

should be eligible for relief. In addition, the 

bankruptcy guidelines look at past inability to pay and

uses that to presume that the borrower will not be able 

to pay into the future. The Department could use that to 

automate relief for borrowers who have been in $0 IDR 

plans, who have used extensive periods of deferments or 

forbearance, or have had low IDR payments for a period, 

you know, potentially as short as three years or more, to 

say that these borrowers also will likely never pay down 

their debts in the future. In addition, the bankruptcy 

guidance also has a presumption that borrowers 65 and 

older will not have a higher income in the future and 

will not be able to repay. The Department could apply a 

similar presumption here that borrowers 65 and older 

under a certain income threshold should also be 

automatically entitled to relief as well. And lastly, the 

presumption that if a borrower has a disability or 

chronic injury impacting their income potential could 

also be a useful presumption here. Notably, the 

bankruptcy guidance does not require that the borrower 

submit a statement from their doctor. It's enough that 

they submit documentation establishing that they have a 

disability or chronic injury impacting their income 

potential, and we would recommend that the Department 
36

Negotiated Rulemaking – 11/7/23

potentially broaden this to include caregivers. We heard 

yesterday from a caregiver who expressed that the burden 

of caregiving was also limiting their income potential as 

well. So again, we do not recommend that the Department 

adopt the bankruptcy guidelines explicitly, but some of 

these principles could be useful in trying to provide 

streamlined or automated relief to populations that we've 

been discussing throughout both of our sessions.

MR. ROBERTS: Thank you, Kyra. Lane, 

please.

MS. THOMPSON: Thanks, Brady. I'm 

looking at three. There's been a good faith effort to 

repay their loans. And I'm thinking back to our first 

session when we were talking about collectability. And 

similar to what Kyra said about folks who have been in $0 

or low minimum monthly payment plans for an extended 

period of time, to me, that shows a pretty clear effort 

to repay loans and also indicates that they're not likely 

to be collectible. So just kind of wanted to tie that in 

there, that there are some parts of hardship where it has 

to do- where it's easily determined by the fact that 

somebody has never made the standard payment. Thanks.

MR. ROBERTS: Thank you. We'll turn to 

John next.

MR. WHITELAW: I think Ed was in front 
37

Negotiated Rulemaking – 11/7/23

of me.

MR. ROBERTS: Oh, was he? I apologize. 

Ed, go ahead.

MR. BOLTZ: I wanted to also following 

[inaudible]. There are other good things in the student 

loan guidance that was issued, including the statements 

and admissions by the Department of Education and Justice 

that good faith efforts to repay can be looked at through 

people's failed efforts to get into various programs. 

Because oftentimes they were, you know, there have been 

findings by the CFPB and the Department of Education 

itself that oftentimes they were discouraged both 

directly by servicers from participating in any of the 

Income Driven Repayment programs or just the general 

tenor they never even got as far as seeking that 

assistance, because it was such a dispiriting process. 

So, I think the guidance can show how the failures to 

enroll in these programs are not always the fault of the 

borrowers as well. Thank you.

MR. ROBERTS: Thank you. Now John.

MR. WHITELAW: Now I'll go. I want to 

echo the comments of Kyra that we do not people- for 

folks with disabilities, we do not think that the 

Department should be limited in any way by the overly 

narrow standard of the bankruptcy court, although there 
38

Negotiated Rulemaking – 11/7/23

are absolutely some parts of it that are welcome. I would 

also want to note, and I think this is implicit in Kyra 

and some other folks comments, but I want to make it very 

explicit and flush it out a little bit and this is 

especially true for students with disabilities. To the 

extent that the process for claiming hardship is 

cumbersome and difficult, that in some ways is as 

important or more important than what the substantive 

requirements are. As an attorney who has represented 

folks with disabilities dealing with Social Security 

waivers which again not substantively the same, but a 

parallel system where you have to show hardship in order 

to have the waiver granted, where the Social Security 

Administration, which it has for decades, requires 

extensive documentation, people fail the test not because 

they're not eligible, but because they can't comply with 

it. So the test- so any of and I know this is the, you 

know, the sort of the broken record of many of us 

automation, automation, automation to the extent that you 

can use readily identifiable proxies for hardship, we 

strongly encourage the Department to do that. And then 

secondly, even where the Department is going to require 

people to assert certain types of hardship, we strongly 

implore the Department to allow self-certification 

obviously under appropriate penalty, but not require 
39

Negotiated Rulemaking – 11/7/23

burdensome provision of evidence, which we all know that 

folks will not do. And think one little example, 

[inaudible] to them, dear John, we see that you have a 

defaulted loan, we see that you're eligible to get total 

and permanent disability discharge, you need to apply 

hundreds of thousands of people could not get through 

that system. And so, it is incredibly important in this 

that to the extent that it can be automated, great. And 

to the extent that you require people to step forward and 

say something just as important as what the rules are, is 

minimizing the extent of the documentation and 

requirements you put on folks to claim hardship. Thank 

you.

MR. ROBERTS: Thank you. Wisdom, 

please.

MR. COLE: Yeah, just to echo some of 

the sentiments, but also add to this conversation, I 

think the Department should also explore alternative 

standards or tests that may be more suitable for 

assessing hardship in the context of student loans. It 

could seek input from further experts like us. I think 

that understanding the limited capacity for 

individualized review the Department has and may need to 

establish a clear and objective criteria for assessing 

these elements. This could involve setting income 
40

Negotiated Rulemaking – 11/7/23

thresholds, defining what constitutes as minimal standard 

of living, and specifying what qualifies as good faith 

efforts to repay. These criteria would help ensure 

consistency and fairness in the evaluation process.

MR. ROBERTS: Thank you. And as 

always, if folks have feedback like that, if you just 

want to put it in the chat as well, just so its codified. 

Yael, please.

MS. SHAVIT: Thanks. I just wanted to 

hearken back to some of the comments made yesterday 

during the public comment period that I think illustrate 

why the standard and the Brunner test is far too high a 

standard and is frankly inapplicable to the nature of the 

student debt crisis as we're experiencing it now. We 

heard from a number of people who talked about how their 

student debt burden was keeping them from making a number 

of decisions and taking a number of actions in their 

lives that they would otherwise have wanted to do, like 

starting a family, being able to branch out to a 

different type of profession and the like and think this 

is a reality that we hear in our office consistently, 

that people who are trying to pay their student loans are 

left stagnant because of the extent of the burden that 

they're facing and think that this test doesn't capture 

that. And applying it in this context, I am concerned, 
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Negotiated Rulemaking – 11/7/23

not only would prevent relief from getting to a lot of 

people who need to do it, but would also sort of 

formalize a system wherein people are expected to remain 

stagnant in their lives and maintain the standards that 

are not at all the reason why they pursued their 

education and, frankly, run contrary to the goals of the 

student loan system. Thank you.

MR. ROBERTS: Thank you. Kyra.

MS. TAYLOR: I second everything that 

Yael just said. I would also just like to note that we do 

not think that the three standards that have to be met to 

satisfy the Brunner test should be applied here. The 

Department should not require that borrowers demonstrate 

good faith to be eligible for relief here. However, like 

I said before, the principles underlying the bankruptcy 

guidelines here could be used to automate or at least 

streamline relief for deserving borrowers and could be 

broadened to capture as many people as possible that 

satisfy how the Department defines hardship.

MR. ROBERTS: Thank you. We'll go next 

to Jalil.

DR. BISHOP: Thank you. I know the 

Department, you know, has asked for evidence so, you 

know, part of what I've spent time doing is trying to 

read through some of the academic and law journals on 
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Negotiated Rulemaking – 11/7/23

just bankruptcy and what happens with student loans and a 

piece of this what I find interesting is that we're 

having a conversation about how to provide relief and 

what's already established, you know, hardship standard. 

And the Department is questioning should we use something 

from bankruptcy? And I think what's important for us to 

understand how strict and how high of a burden it is for 

a borrower to get relief through bankruptcy is that, you 

know, looking at an article out of the Duke Law Journal 

that we see that there's a success rate of 0.1% when 

using some of the tests that are in question here, that 

we know that there are a quarter of a million student 

loan borrowers who file for bankruptcy each year. In this 

particular law journal, they looked at 500 bankruptcy 

proceedings and saw that it was not only about how high 

of a burden it is to overcome these tests, but also many 

borrowers have already been sent the message that is 

impossible to get your loans discharged through 

bankruptcy. So think taking anything from this process 

and communicating that back out to borrowers has not only 

the legal burden they have to overcome, but also just the 

messaging that this is not a real relief policy, that if 

you're going to make them have to prove that they're 

poor, if you're going to make you don't have to go 

through multiple tests to prove their hardship, or if 
43

Negotiated Rulemaking – 11/7/23

you're even messaging the program like that is likely 

going to end up like bankruptcy, where some borrowers 

don't even include their student loans in some of these 

proceedings because they already believe that there's no 

way that they're going to get a discharge. So, I am very 

much against the idea of these tests being a part of the 

messaging or even the regulatory text, because I think it 

has a deeper danger of sending a message to borrowers 

that this is, once again another relief program that 

simply isn't going to work. And they have a lot of 

evidence because they can look at what happened during 

bankruptcy proceedings so far, where again, the success 

rate has been 0.1%. And I'll be happy to share that law 

journal with the Department and the facilitators.

MR. ROBERTS: Thank you. Sherri, 

you're next.

MS. GAMMAGE: Yes. I want to go back 

to Kyra's comment to expand this conversation on 

bankruptcy. First of all, I'm for automation and 

simplification, and I say so thinking about disabled 

borrowers and older borrowers who may not be computer 

literate. And so, a lot of these forms or the filings 

depend on one being able to be accessed, not only 

computers and technology, but able to wade through and 

understand the language in those. Also going back to 
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Negotiated Rulemaking – 11/7/23

senior borrowers, using the data, the Department is 

interested in data and so using the Department data that 

was provided us, you know, 1.48 million people over the 

age of 62 entered repayment more than 65- more than 15 

years ago. But of those, 1.6 million have non Parent PLUS 

Loans, 60% don't have enough savings to cover three 

months of expenses, 4 to 6% face a drop in retirement 

income because of the Social Security offset, 9% are 

forgoing medical care to pay for students loans. And even 

pre-pandemic, people over 62 were on 65 rather were twice 

as likely to be behind on student loan payments and in 

default. And of that number, 114,000 have Social Security 

garnishments. This primarily affects Black, brown and red 

households, women of all races, and ethnic groups who are 

also caregivers who have interrupted their careers 

earlier to care for disabled children, aging parents, and 

sick relatives. And so I would- we're going to look at 

and it's an undue burden going back to what Jalil said, 

to have to people to prove how poor you are, when 

actually you are actually poor and not have access to the 

resources or waivers or believe you don't have access to 

waiver programs because of the what's been happened to 

other folks, what they've heard in the community and 

because of the some of the language that are in the 

regulations.
45

Negotiated Rulemaking – 11/7/23

MR. ROBERTS: Thank you, Sherri. I see 

Lane next.

MS. THOMPSON: I'm thinking of another 

way that bankruptcy could be used to look at hardship. 

So, when somebody has Federal student loans and they file 

a bankruptcy, generally those loans get put into a 

bankruptcy forbearance. I think it makes sense to 

discharge all loans that have a bankruptcy forbearance 

showing on them, because clearly those are somebody who 

had financial hardship. So just kind of throwing that out 

there is maybe another a proxy for how we can use the 

standard without actually making people prove it. Another 

thing I just wanted to mention, kind of similarly to 

that, is that there is a lot of data- some of the 

Department already has some that's available on the 

internet regarding people's wages over time. By which I 

mean it's pretty clear that most standard incomes have 

not increased significantly over, let's say, the last ten 

years. So just kind of throwing that out that, you know, 

if you want to look at folks tax returns over ten years 

and say, okay, well, it looks like their income never 

increased, I don't think that they are going to see that 

in the future. Just one more thought.

MR. ROBERTS: Thanks, Lane. As we kind 

of begin to duck into the subject of question two. Ed, do 
46

Negotiated Rulemaking – 11/7/23

you want to be the final comment on question one? And we 

can kind of transition right into that next discussion 

topic. Oh, you're muted right now, Ed. Sorry.

MR. BOLTZ: I'm sorry. I did want to 

reiterate something that Kyra raised earlier and contrast 

it again with bankruptcy. Is that under the guidance, the 

Department of Education and his lawyers at the Department 

of Justice are no longer going to be arguing that the 

determination of what whether someone has the ability to 

repay student loans is based on the applicable Income 

Driven Repayment Plan. Routinely, we would see before 

that they would say, oh, everyone can afford $0 a month. 

So, you don't need a forgiveness of your debts through 

bankruptcy. The guidance changed that, you know, so that 

now the Department of Education and Justice, they look at 

what a standard ten-year repayment would be of the full 

amount of the balance, rather than this IDR, which is a 

more realistic approach. And instead of trapping people 

in a 20 or even 25-year repayment cycle where they're 

paying nothing for or minimal amounts for extended 

periods of time, it looks at what the original contract 

would have required, which is the standard ten year. So,

I hope that that is carried through, because that is one 

of the good examples from the bankruptcy context. Thank 

you. And I'll step off then and cede back to Jessica.
47

Negotiated Rulemaking – 11/7/23

MR. ROBERTS: Great. Thanks, Ed. Tamy, 

go ahead.

MS. ABERNATHY: So, in listening to 

all of this discussion, we really would like more 

concreteness from you guys. You say things like 

streamline and proxies. We need specific ideas and what 

that would that exactly means. So, where you can expand 

on that a little bit or give us more definitive, concrete 

information? That's really what we're looking for here. 

This has been very, very helpful for us as we're, you 

know, collecting ideas for where we want to go with this 

particular issue. And it's, you know, we just need a 

little bit more from you guys. And so, we thank you for 

the dialog so far. But going forward, if you could be 

more concrete that would be really helpful to us going 

forward. Thanks.

MR. ROBERTS: Thank you, Tamy. Jalil.

DR. BISHOP: Well, first I'll say it 

would be also helpful, you know, in return, if the 

Department also can be a little bit more just clarifying 

and I think, you know, jump in to give us, just as you 

just did, Tamy, a little direction of things you're still 

looking for. I think that helps throughout the 

conversation. So, thank you. I think on the piece of 

trying to be very concrete, I think back to the 
48

Negotiated Rulemaking – 11/7/23

conversation where Ben Miller responded to the question 

around GE programs. I think it's important for trying to 

ask this question around how to zero in on hardship. The 

same calculations that, from my understanding of the 

Department’s able to already do, we should expand that to 

borrowers overall, trying to understand again, what does 

it mean using already available data to the Department to 

calculate. What does it mean not to have received a 

benefit from your degree, and not only for GE programs, 

but expand that principle to other borrowers so that they 

can get relief? We also can use a Pell Grant as a proxy 

to offer relief to borrowers both who received a Pell 

Grant themselves, but also to their parents. We saw from 

the Department of ED data that was sent out to us that 

59% of Parent PLUS Loan borrowers since 2000 also 

received- their children received a Pell Grant, meaning 

that we're talking about a Parent PLUS borrower that is 

not a middle class rich parent, we're talking about a 

Parent PLUS borrower the majority of them whose children 

also received a Pell Grant. So that's another concrete 

measure that the Department has that they can use to 

deliver cancellation. We have talked about age. I think 

age is another place where we can look at borrowers over 

a certain age, borrowers who are receiving Social 

Security, Medicare without the premium. These other 
49

Negotiated Rulemaking – 11/7/23

measures that we're hoping the Department is able to use 

to automate and really direct relief to borrowers with 

and using records and data that either the Department has 

or is able to get access to through an MOU and so forth. 

So, I think another piece that the Department brought up 

that I just want to really underscore is that, again, 

borrowers have a ten year standard repayment, and that 

should really be shaping the regulatory text of how we're 

determining relief. Not looking at IDR that the 

Department has had to repeatedly acknowledge has not 

operated in a way that would allow that to be really an 

accurate way to understand repayment history or payment 

processes for borrowers. So just want to underscore that 

that ten-year repayment really should be the standard in 

which we determine hardship. Borrowers process through 

repayment and so forth, not IDR due to the many issues 

that we already know are well documented with these 

programs. And even if SAVE exists, as I said yesterday, 

it is new and it right now does not have evidence that is 

not going to go down the same path as many of the IDR 

plans that we have seen before.

MR. ROBERTS: Thank you, Jalil. And 

again, as folks offer those specifics, saying them in a 

comment is really helpful and then codifying them in chat 

as well. Just you don't lose record of them. We'll go to 
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Negotiated Rulemaking – 11/7/23

John next.

MR. WHITELAW: I want to get 

clarification from Tamy as to whether, again without 

comment on the merits of whether the Department would 

agree with this specific example but is this the type of 

thing you want I was thinking, for example anyone who 

gets ACA coverage, health coverage with a subsidy that's 

a again, I'm not asking you to say you like that as an 

example of someone that would be eligible for a hardship 

relief, but in terms of giving you specific categories as 

proxy for hardship, is that the sort of list of things 

that you want us to provide you?

MS. ABERNATHY: John, thank you so 

much. That really is a helpful example. A little bit more 

of an explanation why. And yes, absolutely. This is kind 

of a helpful explanation why and a rationale as to why 

you consider that particular component something we 

should consider. We are open to all of your suggestions;

I mean within reason. I don't want to say, you know, 

obviously we can't say yes, we're going to go down this 

road. But John, you spoke very well. Yes, we would 

consider that among a bunch of other concrete items that 

you guys bring to us. This is exactly the kind of dialog 

we want to have around this topic, around this issue. So,

we do really appreciate you putting that out there. So,
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Negotiated Rulemaking – 11/7/23

thank you so much. You're a trailblazer.

MR. ROBERTS: Alright. We'll go to 

Kyra next.

MS. TAYLOR: Tamy I appreciate your 

request for more specificity from us, but I think it 

would be helpful if the Department could provide examples 

of data that we could use for proposals as well, because 

it is difficult for us to be able to speculate about the 

data sources that the Department already has access to. 

Particularly with other Federal agencies or potentially 

even in some cases, state agencies.

MS. ABERNATHY: So, we will take that 

under consideration Kyra and perhaps be able to get back 

to you later this afternoon about some of that 

information. Thank you.

MR. ROBERTS: Alright, Yael.

MS. SHAVIT: I actually was about to 

say the same thing, Kyra, so I won't belabor the point, 

but I would ask more broadly, you know, in addition to 

any specifics about the data that the Department already 

has access to. Also knowing what like MOUs or access, you 

know, agreements already exist with other agencies in 

addition to that can help us think more broadly as well 

about what data those agencies have that we may be able 

to propose for you.
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MR. MILLER: If can respond on that 

just very quickly. So, when we do data sharing agreements 

with agencies, we have to list the specific purposes for 

the data sharing. So, I would not necessarily assume that 

we can just re-leverage what already exists there. So,

for example, like we have a data sharing agreement with 

the Social Security Administration to help us identify 

borrowers who are eligible for total and permanent 

disability discharges. And in August of 21, we changed 

that, so we automatically discharge those folks when we 

identify them with an opt out. That entire agreement is 

written for the purpose of TPD discharges. So, if we 

wanted to reuse any of those, you're basically talking 

about either a new or totally amended data sharing 

agreement that as a general matter, take probably a year 

plus to stand up. So, I would sort of not assume that any 

data we're getting from another Federal agency can just 

inherently be leveraged for this purpose. And so, I would 

think about more in terms of what do you think are

indicators we might want and concreteness around them and 

then we can look at what it would take and the 

feasibility of like, could we stand those types of things 

up.

MS. SHAVIT: You know, that's helpful 

context and I'm aware of it, right? I think there's sort 
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Negotiated Rulemaking – 11/7/23

of a question of what do you already have that you can 

use? But also, you know, this portion of the regulations 

is intended to be forward looking, right? And not merely 

retroactive. So I think if we have access to the 

information about what data exists that you've been able 

to get for other purposes, recognizing that you would not 

immediately be able to use that data for a new purpose, 

it could inform, you know, what may be an option down the 

line. And I think giving you, you know, as many ideas as 

possible would be helpful. But certainly, we shouldn't 

only go with the data that's sort of publicly available. 

Right?

MR. MILLER: I mean, as a general 

matter, right? So, we have the match with SSA, which you 

can use for permanent disability discharges. You know, 

we're in the midst of matches with the Office of 

Personnel Management and Department of Defense to get 

data on the PSLF. We have matches with the Department of 

Defense for information about who's in hostile fire pay 

zones, which we use for other things. I think you got to 

kind of tell us what data points you want, and we can 

figure out what's there, but we really need concreteness 

here. Like John gave us a lot of concrete stuff in this 

session. Last session, when we hear stuff like 

streamlined or automation, like we need to know what you 
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Negotiated Rulemaking – 11/7/23

actually want and the thresholds and like how you would 

think about the rationales there because we have to write 

them to justify the reg.

MS. SHAVIT: Do you have carceral 

information? Federal carceral information?

MR. MILLER: That I do not know. We 

can look into that.

MR. LEGAARD: I believe I do. And the 

answer is no.

MR. ROBERTS: So since we're already 

sort of on the topic, I just want to clarify for the 

record that question two the sort of the topic of that 

which is many of the forms of hardship identified, such 

as familial wealth or significant expenses for medical or 

childcare, are not obtainable from the Department's 

administrative records. Given that what types of 

administrative data might be available to the Department 

related to the areas of hardship identified? So just in 

keeping with the conversation that we've been having, the 

suggestions are most appreciated. With that, I think see 

Wisdom's hand next.

MR. COLE: Yeah. I added this in the 

chat. But just recognizing particularly for Black 

borrowers because they are starting at a weaker economic 

threshold. The amount of educational debt that goes into 
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taking out student debt in itself is a hardship. I think 

that making sure the Department considers the borrower's 

inability to repay the student loans and the student 

loans itself being the hardship that they're facing, and 

then recognizing factors such as high interest rate, 

inadequate employment opportunities in their field of 

study. That is something that's common when we see Black 

borrowers taking out this debt and trying to get jobs in 

the workforce to pay that back out. I think factors such 

as financial aid and enrollment record, public assistance 

and benefit data, demographics on household data, even 

financial aid application data can be used in this 

process.

MR. ROBERTS: Thank you, Wisdom, and 

thank you to everyone continuing to populate the chat 

with additional suggestions. Lane.

MS. THOMPSON: I think Wisdom did a 

really good job of bringing this back into the 

conversation, but I just want us to be really thoughtful 

about the fact that in applying for student debt, there's 

a FAFSA form that has to be filled out and that that 

indicates that there's a need for that debt. You know, 

most folks who do not take student loans have some kind 

of familial wealth or have some other way to fund their 

college. I know there's been a lot of talk of people who 
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didn't go to college, and I just want to kind of throw 

out there that for a lot of folks who have student debt, 

it was the only way they were ever going to go to 

college. And so, it was already means tested, right? Like 

maybe having the student debt is the hardship. You had to 

be poor to get it in the first place. So, unless you were 

able to pay it off, maybe you're still poor. So that's 

kind of just a more general thing. And then the more 

specific thing I kind of wanted to add in as well is 

there is data that the Department has. Let me give two 

examples. One is borrowers without a permanent address. 

So that could be someone who is homeless. And that's why 

they don't have a permanent address. Borrowers whose 

address shows as a prison, or another category would be I 

lost my train of thought there, but yeah. Borrowers who 

have certain attributes that are showing on their 

records. Thank you.

MR. ROBERTS: Thank you, Lane. 

Angelika.

MS. WILLIAMS: Yes. Going back to the 

conversation about proxying the data and utilizing the 

tools that are in the realm of the Department, which are 

what we call COD, the common origination and disbursement 

system in NSLDS and going back to this topic of using 

that data that's in those reporting tools from the 
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different institutions, I want to highlight the Borrower 

Defense to repayment. As we know, and we've seen from 

recent news that there's a list of schools that were 

involved in that process in having the borrowers complete 

an application, right? When we know that there was some 

common aspects of individuals who were subject to 

employment issues based on the particular list of 

schools. We do know that the institutions report the 

student's field of study or program of study into the 

U.S. Department of Education's systems. So, using the 

concept of proxying data and using automation, there 

should be a way to find all the individuals that were in 

the same program once you identify the trends. And 

reaching out to those borrowers, instead of having the 

borrowers reach out to you to say, hey, I was also in the 

program at the same school, subject to the same situation 

once the trend has been identified. And so, I think 

that's where we're going with the conversation of using 

automation with the systems that are within the realm of 

the Department of Education, not so much as outside 

agencies. The institutions are reporting that amount of 

information, a large amount of information to the 

Department that could be used in conjunction with the 

Borrower Defense to repayment process, to eliminate the 

need for those borrowers that were subject to the same 
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conditions without them having to fill out the 

application.

MR. ROBERTS: Thank you, Angelika. 

Lane, I see your hand next.

MS. THOMPSON: I remembered what I was 

going to say. I think that folks who have had Federal 

benefits offset would be a good proxy for hardship. So 

specifically, Social Security is a benefit that can be 

offset for defaulted Federal loans. And in order to do 

that, offset the Department has some kind of forms about 

it. So that was what I was thinking of. As folks who have 

had Federal benefits, offset are obviously struggling to 

repay their loans.

MR. ROBERTS: Thank you, Lane. Kyra.

MS. TAYLOR: I just wanted to- I 

raised this in the chat, but the Department can certainly 

look at the data underlying borrowers who have been in 

default to provide automated relief to those borrowers 

that could use that data to determine the groups of 

borrowers, satisfy the Department's definition of 

hardship, and also and or will never repay their debts. 

So, either they satisfy the Federal claims collection 

standards, or they satisfy this new definition. In 

addition, the Department might look to the estimated 

family contributions, as I believe others have raised 
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Negotiated Rulemaking – 11/7/23

earlier, to determine a threshold that establishes that 

that borrower doesn't come from familial wealth and will 

struggle to repay their debt because they will not have 

any kind of safety net underlying them as well. So that 

would be another data source, potentially within the 

Department's possession, that could look to. And then 

last, the Department could also look at historical use of 

IDR, as I mentioned before, to determine a threshold to 

provide borrowers with relief.

MR. ROBERTS: Thank you, Kyra. Jalil.

DR. BISHOP: I'm just wondering if the 

Department is able to tell us if they are unsure. So, you 

provide us a list of hardship categories in the issue 

paper. Are you able to tell us if you don't feel 

confident, or you have a low level of confidence around 

any of these hardship areas when it comes to having the 

administrative data to identify these folks? So that way 

there's, you know, for example, the Affordable Care Act 

subsidy is an area where you don't have that data, we, 

you know, can just be made aware of that? Versus I'm 

assuming, you know, who received the Pell Grant and who 

didn't.

MS. ABERNATHY: I would think we would 

have to look at that on a case-by-case basis. And, you 

know, we're going to explore any suggestions that you 
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give to us. We're going to explore what we have, what we 

have access to, what our methods to gain access to that 

information is. So, think we can't speak any more about 

that. But we will look at each one of the ideas to know 

how we could leverage the data we have, or ways to get 

that data through a different method to use that.

DR. BISHOP: Thank you.

MR. ROBERTS: Anyone else have any 

comments or suggestions for consideration of this 

committee as it relates to potential administrative data 

sources? I see, David. I see your hand raised. Go ahead.

MR. RAMIREZ: Hi. Yes, I also want to 

elevate students who have been eligible for SNAP 

benefits. I'm sure many of folks here know that college 

hunger affects your ability to work, including how it 

contributes to your well-being and how you're able to 

focus on school and just based off of some survey data 

that I was able to find on EBT recipients 61% of surveyed 

users are very or extremely stressed that student loan 

repayments restarted in October, and 59% don't know when 

their next payments are due. One quarter of surveyed 

borrowers say that they will have to spend less on 

necessities like groceries and rents to afford their 

monthly student loan payments. And so, if we're able to 

find some relief for students that have been eligible for 
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SNAP, I think that would be awesome. I'm sure it's an 

administrative burden as well, but hopefully we can 

consider that. And also wanted to elevate foster youth 

due to a lack of resources and support systems, just 3 to 

4% of former foster youth obtain a four-year college 

degree. There's a huge disparity from the general 

population, and between 2 and 6% receive a two-year 

degree. So, if you want to get into specifics, I think 

those have been eligible for SNAP and also those that are 

foster youth should be considered.

MR. ROBERTS: Thank you, David. And 

just for the records sake David's an alternate negotiator 

for two-year borrowers. Jessica.

MS. RANUCCI: Hi. Just wanted to 

elevate a few comments in the chat about using Pell 

eligibility as a component of any hardship program. I 

think Pell eligibility gives a really important snapshot 

into a borrower's past family and hardship situation. And 

I think particularly combined with certain current 

circumstances, would really give the Department a real 

understanding of the borrower's past and present hardship 

that I think would be likely to be continued in the 

future. So think, for example, a borrower who is Pell 

eligible, who has Parent PLUS Loans we all know those 

Parent PLUS Loans are not eligible for the most 
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Negotiated Rulemaking – 11/7/23

affordable repayment programs is someone who would have 

experienced, you know, past hardship and current hardship 

that would be likely to continue into the future. I think 

you also could consider for Pell eligibility certain 

specific categories of, for example, Income Driven 

Repayment eligibility, such as someone who was Pell 

eligible at the time of applying to school and then 

currently is on, you know, a $0 IDR plan. That would be 

another example of a category of someone who might have 

had past and current hardship that is likely to continue 

to the future. And I guess just in the big picture, not 

to lose that think the Pell eligibility was a really good 

piece of the expanded relief available to individuals who 

have Pell eligibility was a very important piece of the 

10/20 plan I wouldn't want it to get lost.

MR. ROBERTS: Thank you, Jessica. And 

I do just want to point out, I think Tamy responded to an 

earlier question on readily accessible sources of data 

that the Department has. Wisdom.

MR. COLE: I definitely agree with 

Jessica on the Pell eligibility. I definitely want to 

dive into the idea around looking at household size and 

composition. Information about borrower’s household size 

and dependance can be important when assessing hardship 

related to familial responsibilities. We know from our 
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Negotiated Rulemaking – 11/7/23

stories that we've collected in talking with Black 

borrowers, that oftentimes Black borrowers have to not 

only support themselves through college, but also have to 

support their families. And even when they graduate, that 

support in terms of familial support and the size of the 

household continues on. I think understanding and looking 

at marital status, right, marital status can impact a 

borrower’s financial situation and the information that 

may be available through administrative records as well. 

I think essentially what we need to do is look at a 

combination of all of these data sources to really build 

a comprehensive picture of a borrower’s financial 

circumstance. Not one of these will completely tell you 

the picture of a borrower, but in combination together, I 

think we can see the benefit for as many borrowers as 

possible.

MR. ROBERTS: Thank you. Jalil, go 

ahead.

DR. BISHOP: Yes. And I think that 

it's important for us to really consider, you know, what 

are we aiming for here, too? So, it's not about trying to 

create a program or a data point or a proxy that is going 

to be a silver bullet, I think to Wisdom's point is 

really about trying to create a set of tools that can 

capture as many borrowers who are experiencing hardship 
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as possible. And think that this is really important when 

we think about borrowers who are struggling, as someone 

who has worked directly with borrowers, helping them 

navigate this process, as someone who researched this, 

who has heard from over 2000 borrowers and some of the 

research I've shared with Department and most of these 

borrowers in my research are people who are enrolled in 

IDR plans. They are people who still are saying, I don't 

have a savings account. There are people who are still 

saying, I don't know how I can handle childcare expenses. 

There are people who are still sharing the experiences of 

not only having student debt for themselves as a lowincome Pell Grant recipient, but also watching their 

parents who had to take on a Parent PLUS Loans as well. 

So, I think we need to not think about silver bullets, 

about how do we create really a arsenal of tools to make 

sure that we're providing hardship automatically and 

through streamlined ways using these proxies, but that 

we're doing it in a way that tries to capture as many 

borrowers as possible. And really remembering that we 

don't have a silver bullet solution here that we can't 

say, well, we're not going to do this because this group 

is already handled by this policy or that program or this 

relief. We really need to actually come up with ways to 

catch groups of borrowers in 3 or 4 different ways, 
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because that is how complicated and how burdensome having 

student loan debt is. And navigating our student loan 

system is. So I just want to emphasize that even if Pell 

is great to capture some of Parent PLUS borrowers, we may 

also need age, or we may also need to look at what type 

of Medicare or Social Security or these other pieces that 

we really need a set of comprehensive tools to capture 

borrowers in many different ways. And I really, really 

hope the Department can move away from what sometimes 

feels like, well, we already have a program for that, or 

we have a policy for that, or we already have what to me 

sounds like a silver bullet to address that. And we just 

have too much history and too much evidence. And many of 

us on this call have heard from too many borrowers saying 

your programs often do not work. So, I think this needs 

to be a process where we come up with 4 or 5 different 

ways to get at borrowers so that they can get the relief 

again that they need desperately, but often are legally 

entitled to.

MR. ROBERTS: Thank you, Jalil. 

Looking at the time right now, if folks have any 

additional comments on questions 1 or 2, we can probably 

end the morning session on that. But if not, we can pick 

back up at 1 p.m. with question three. Would that work 

for the Department, Tamy?
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Negotiated Rulemaking – 11/7/23

MS. ABERNATHY: Yes, it would. Thank 

you so much. Now, I do have one thing to say, Brady. If 

it's okay?

MR. ROBERTS: Yeah, of course.

MS. ABERNATHY: We have been trying to 

work on the questions that we've received through the 

chat, those that we have not already answered throughout 

our discussions. We will be placing some of the responses 

to those questions in the chat going forward. We're 

trying to be mindful of what we said yesterday that we're 

going to try to answer as many questions as we possibly 

can from day one and day two of this session within our 

negotiations. So, look for some of those responses in the 

chat. We're going to try to do that while we break for 

lunch. And when you come back, you'll have some 

information related to the questions that some of you 

have answered. Thanks, Brady.

MR. ROBERTS: Well, thank you all. We 

will resume the live feed at 1 p.m. and pick up with 

question three, which I'll read just for the record. We 

might repeat it again, but we'll resume at 1 p.m. with 

question three. Which is how should the Department 

consider operational limitations and administering a 

hardship process such as limited resources, the need for 

allowing other agencies or external parties to provide 
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Negotiated Rulemaking – 11/7/23

data, and the challenges in requiring borrowers to 

complete applications? So, with that, I think we can go 

off live and we'll resume at 1 p.m.
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Negotiated Rulemaking – 11/7/23

Zoom Chat Transcript

Student Loan Debt Relief Committee - Session 2, Day 2, Morning, November 7, 

2023

*Chat was copied as presented, as a result minor typos or grammatical errors 

may be present.

From Soren Lagaard, Department of Education, OGC to Everyone:

be right back

From John Weathers (FMCS Facilitation Team) to Everyone:

Folks, if you are not a primary please turn off your 

camera. Thank you

From P - Kathleen Dwyer - Proprietary Institutions to Everyone:

For those who withdraw and later enroll in another program – how 

would this be treated?

From P- Kyra Taylor, Legal Aid Orgs to Everyone:

We support the Department providing relief to borrowers whose 

schools failed the GE standards and encourage the Department to 

provide relief to borrowers whose cohort failed the GE rates for 1 

year, but did not ultimately lose Title IV eligibility

From P-Sherrie Gammage-4-Yr Borrowers to Everyone:

Reacted to "We support the Depar..." with ���

From (P) Angelika Williams: Private, Nonprofit 

Institutions to Everyone:

Following the discussion of cohort default rates, I suggest 

incorporating information about institutions that do not meet 

administrative capability standards and become subject to debarment 

and suspension certification. If a school or its principals face 

suspension, debarment, or are in the process of debarment by a federal 

agency, they lose their eligibility to participate in any Student 

Financial Aid (SFA) Program.

From P-Yael Shavit-State AGs to Everyone:

Reacted to "We support the Depar..." with ���

From P- Jessica Ranucci (Consumer Advocates) to Everyone:

I support the Department's provision of relief to borrowers who 

are unable to complete their program or institution due to the program 

or institution's loss of Title IV eligibility. I propose that the 

Department revise these regulations to include other circumstances in 

which the school or institution loses Title IV eligibility such as a 

termination or revocation action.

From P-Yael Shavit-State AGs to Everyone:

I support the suggestion to expand to those institutions that 

lose Title IV eligibility

From P - Lane Thompson - state agencies to Everyone:

would this language apply to borrowers who took out loans before 

2015, or only from 2015 forward?

From A- Susan Teerink - Private non-profit 

institutions to Everyone:

+1 Yael's comment

From P- Kyra Taylor, Legal Aid Orgs to Everyone:
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Negotiated Rulemaking – 11/7/23

We ask that the department strike “(iii) The borrower did not 

submit an acknowledgment under § 668.605.” both because it creates 

unnecessary administrative burden on the part of the Department to 

verify who did or did not submit the form and because schools may have 

fabricated whether the borrower submitted the form. In addition, in 

our experience, borrowers may not have understood what they were 

signing when they were presented with these forms.

From P- Kyra Taylor, Legal Aid Orgs to Everyone:

We are also in support of subsection (f)

From P- Jessica Ranucci (Consumer Advocates) to Everyone:

Could you explain the difference between "may waiver repayment" 

in (f) and (g) versus "may waive the outstanding balance" in (b)-(e)?

From A-Edward Boltz-Consumer Advocates to Everyone:

shall waive versus may waive

From A-Jalil Bishop-Student Loan Borrowers-Grad 

Programs to Everyone:

Jalil coming in as primary

From P- Jessica Ranucci (Consumer Advocates) to Everyone:

Ed Boltz is going to come in as primary briefly

From P-Sherrie Gammage-4-Yr Borrowers to Everyone:

+1 Jalil

From A - India Heckstall, Civil Rights Organization to Everyone:

+1 Jalil in making the process automatic

From (P) Jada Sanford - Currently Enrolled to Everyone:

+1 Jalil

From A- Susan Teerink - Private non-profit 

institutions to Everyone:

+1 Jalil

From (P) Richard Haase - Graduate Borrower to Everyone:

+1 in emphasizing as much automation as possible for this GE 

section as well

From Kyra Taylor, Nat'l Consumer Law Ctr. to Everyone:

+1 Jalil

From P-Sherrie Gammage-4-Yr Borrowers to Everyone:

Reacted to "+1 Jalil" with ���

From P-Melissa Kunes-Public 2&4 Yr Schools to Everyone:

Automation is key in granting these relief opportunities.

From P - Lane Thompson - state agencies to Everyone:

+1 Jalil on automating processes, providing relief to borrowers 

who did not complete their education

From P-Sherrie Gammage-4-Yr Borrowers to Everyone:

Reacted to "+1 Jalil on automati..." with ���

From P - Wisdom Cole, Civil Rights to Everyone:

+1 Jalil

From P - Ashley Pizzuti - 2yr Borrower to Everyone:

Does that include borrowers prior to 2015?

From Kyra Taylor, Nat'l Consumer Law Ctr. to Everyone:

Also +1 on expanding relief further to capture more borrowers who 

did not complete their programs

From A- Edward Boltz (NACBA/NASLL) to Everyone:

Waivers of discharge are unenforceable in bankruptcy because 

those would completely undermine all relief, particularly by the least 

reputable lenders, unless under 11 USC 727(a)(10) the bankruptcy 
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Negotiated Rulemaking – 11/7/23

judge finds that:(1) the waiver must be approved by the court; 

(2) the waiver must be in writing; (3) the waiver must be 

signed by the debtor; (4) the waiver must be reasonable, and (5) the 

waiver must be given after the order for relief (post-petition). ED 

should not allow waiver of GE by borrowers through an attestation 

entered into as a condition of the student loans, as such would 

certainly both be made obligatory by lenders and schools and would be 

buried in paperwork.

From A- Edward Boltz (NACBA/NASLL) to Everyone:

I'll step off for Jessica also

From P- Jessica Ranucci (Consumer Advocates) to Everyone:

Ed Boltz is coming back in for consumer advocates

From A- Edward Boltz (NACBA/NASLL) to Everyone:

SLAP & Attestation Queries: • How many Student Loan 

Adversary Proceedings (SLAPs) have been filed in bankruptcy cases 

since November 17, 2022? • How many SLAPs have resulted in a 

stipulation of discharge being entered? • What has been the average 

amount of time for a determination by the DOJ/ED? • Of those 

SLAPs where the DOJ/ED has declined to stipulate to a discharge, what 

percentage were based on each of the three prongs of the Brunner 

Test, viz. past, present and future analyses. That information 

would be helpful both in bankruptcy, including interfacing with the 

Office for Access to Justice at DOJ, and for evaluating its use 

outside of bankruptcy

From P-Vincent Andrews-Veteran & Military Groups to Everyone:

Agree with Lane. It's pretty well documented that salary 

increases for employees remains stagnant, and individuals in low to $0 

payments aren't highly likely to be eligible to pay over the next 5-10 

years

From Sarah Butts, (she/her) A- 4 yr. borrowers to Everyone:

+1 for John's comments. The process should be automated and easy 

to access.

From A- Edward Boltz (NACBA/NASLL) to Everyone:

+1 to John Whitelaw, especially as borrowers are also 

discouraged and impeded in getting legal assistance for any relief

From P-Carol Peterson HBCU, Tribal Colleges & Minority Serving 

Instit to Everyone:

+1 to John Whitelaw.

From P - Lane Thompson - state agencies to Everyone:

+1 to John automation is key, and the department has some data 

that could be used as a proxy for hardship

From (P) Richard Haase - Graduate Borrower to Everyone:

+1 on making sure process doesn’t lead to people who are eligible 

not receiving relief

From P-Yael Shavit-State AGs to Everyone:

+1 to simplicity and automation

From Kyra Taylor, Nat'l Consumer Law Ctr. to Everyone:

+1 to John’s comments re:automation and simplicity

From A- Susan Teerink - Private non-profit 

institutions to Everyone:

+1 automaton and simplicity

From A - India Heckstall, Civil Rights Organization to Everyone:

+1 to simplicity and automation
71

Negotiated Rulemaking – 11/7/23

From P-Sherrie Gammage-4-Yr Borrowers to Everyone:

+1 to simplicity and automation

From Kyra Taylor, Nat'l Consumer Law Ctr. to Everyone:

+1 to Yael’s comment re: this standard being too difficult

From A- Edward Boltz (NACBA/NASLL) to Everyone:

+1 that ED needs to better publicize, including to the public and 

the US Department of Justice attorneys, that it has changed its stance 

regarding bankruptcy discharge

From John S. Whitelaw, (he/him) Advocacy Director, CLASI 

(Delaware) to Everyone:

Self-certification instead of documentary verification

From Kyra Taylor, Nat'l Consumer Law Ctr. to Everyone:

+1 regarding self-certification

From A-Jalil Bishop-Student Loan Borrowers-Grad 

Programs to Everyone:

+1 to self certification/reporting

From Kyra Taylor, Nat'l Consumer Law Ctr. to Everyone:

+1 re: Sherrie’s comments the need to streamline relief for older 

borrowers and caregivers

From A-Jalil Bishop-Student Loan Borrowers-Grad 

Programs to Everyone:

+1 on if a person has filed/completed bankruptcy then discharge 

their loans. But do not make people have to clear the undue 

hardship/Brunner test

From P - Wisdom Cole, Civil Rights to Everyone:

+1 to self certification

From (P) Richard Haase - Graduate Borrower to Everyone:

modeling eligibility for student loan relief on bankruptcy 

criteria too closely means we’re too little too late

From P-Sherrie Gammage-4-Yr Borrowers to Everyone:

Reacted to "modeling eligibility..." with ���

From Kyra Taylor, Nat'l Consumer Law Ctr. to Everyone:

+1 on re: providing relief to borrowers that have already

completed bankruptcy and still have outstanding student loan debt

From P-Sherrie Gammage-4-Yr Borrowers to Everyone:

+1 Edward on looking at the standard repayment rather than IDR

From A- Edward Boltz (NACBA/NASLL) to Everyone:

Replying to "+1 on re: providing ..."

+1 and also making the bankruptcy guidance retroactive to older 

cases also, rather than requiring another bankruptcy

From A- Edward Boltz (NACBA/NASLL) to Everyone:

Iuliano, Jason, The Student Loan Bankruptcy Gap (October 21, 

2020). 70 Duke Law Journal (2020), Available at SSRN: 

https://ssrn.com/abstract=3715975 

From Sarah Butts, (she/her) A- 4 yr. borrowers to Everyone:

The Department should provide relief to Parent Plus borrowers who 

themselves were Pell grant recipients and also to Parent Plus 

borrowers whose dependents are now current Pell grant recipients.

From P - Wisdom Cole, Civil Rights to Everyone:

The department should consider whether a borrower's inability to 

repay student loans is due to factors unique to educational debt, such 
72

Negotiated Rulemaking – 11/7/23

as high interest rates or inadequate employment opportunities in their 

field of study

From Sarah Butts, (she/her) A- 4 yr. borrowers to Everyone:

Reacted to "The department shoul..." with ���

From A - Jordan Nellums - Currently Enrolled 

Postsecondary to Everyone:

Replying to "The Department shoul..."

+1 on providing relief to Parent Plus loan borrowers who have 

dependents that are also pell grant recipients

From A - India Heckstall, Civil Rights Organization to Everyone:

Replying to "The Department shoul..."

+1 to provide relief to Parent PLUS loan borrowers who were Pell 

Grant recipients and to Parent PLUS borrowers who dependents are Pell 

Grant recipients

From Kyra Taylor, Nat'l Consumer Law Ctr. to Everyone:

The Department should consider discharging the debts of borrowers 

who have been in a $0 or low-dollar IDR plan for 3 years or more

From Sarah Butts, (she/her) A- 4 yr. borrowers to Everyone:

The Department should consider asking borrowers for their job 

titles and look for trends among certain workforces and their ability 

to pay their student loans. This data can help us to understand 

certain types of hardship.

From P-Vincent Andrews-Veteran & Military Groups to Everyone:

Reacted to "The Department shoul..." with ���

From P - Kathleen Dwyer - Proprietary Institutions to Everyone:

Reacted to "The Department shoul..." with ���

From P - Lane Thompson - state agencies to Everyone:

+1 to Kyra - borrowers who have less than $100 a month IDR 

payments for more than three years should have their debt forgiven

From Sarah Butts, (she/her) A- 4 yr. borrowers to Everyone:

+1 to Kyra's comment regarding borrowers who have a $0 payment 

for 3 or more years.

From Sarah Butts, (she/her) A- 4 yr. borrowers to Everyone:

Reacted to "+1 to Kyra - borrowe..." with ���

From P-Yael Shavit-State AGs to Everyone:

Reacted to "+1 to Kyra - borrowe..." with ���

From P-Yael Shavit-State AGs to Everyone:

Reacted to "The Department shoul..." with ���

From (P) Richard Haase - Graduate Borrower to Everyone:

Does the requirement for data sharing MOU extend to ED receiving 

data from state education agencies, or is the sharing of data between 

and among those implied?

From A-Jalil Bishop-Student Loan Borrowers-Grad 

Programs to Everyone:

1. Calculate the D/E rates/failed earnings premium for all 

borrowers not just those under GE programs

2. If you received Pell or a parent of a Pell grant recipient

3. If you have a set of hardships (however they are defined by 

the Dept) and have been in repayment for over 15 yrs
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Negotiated Rulemaking – 11/7/23

4. Educational debt that is much higher than the avg for a 

borrower cohort

From Kyra Taylor, Nat'l Consumer Law Ctr. to Everyone:

The debts of borrowers in default where 1) the Department’s 

collection powers are only covering fees & interest, 2) 65+ with an 

income limit 3) Parent PLUS borrowers where the student’s EFC was $0

From Kyra Taylor, Nat'l Consumer Law Ctr. to Everyone:

4) the borrower entered default 3 or more years ago 5) the 

borrower was in receipt of means tested benefits

From P - Wisdom Cole, Civil Rights to Everyone:

Already means tested!

From A-Jalil Bishop-Student Loan Borrowers-Grad 

Programs to Everyone:

Survey of Consumer Finance shows that the majority of student 

debt borrowers have zero or negative wealth

From John S. Whitelaw, (he/him) Advocacy Director, CLASI 

(Delaware) to Everyone:

I would also note that even if cannot be automated these proxies 

are much easier to document than a long list of income and expenses.

From (P) Jada Sanford - Currently Enrolled to Everyone:

+1 Lane, Considering the need to take on debt a hardship

From Ben Miller - Department of Education (he/his) to Everyone:

Replying to "Does the requirement..."

Government to government matches (including state to federal) 

require a formal agreement.

From (P) Richard Haase - Graduate Borrower to Everyone:

Replying to "Does the requirement..."

Than you

From P - Wisdom Cole, Civil Rights to Everyone:

The department can compare data set with those who have debt and 

are on federal programing and can wipe the debt

From P - Ashley Pizzuti - 2yr Borrower to Everyone:

+1 To Angelika on BDTR comments.

From (P) Angelika Williams: Private, Nonprofit 

Institutions to Everyone:

Reacted to "+1 To Angelika on BD..." with ���

From Sarah Butts, (she/her) A- 4 yr. borrowers to Everyone:

The Department should provide relief to borrowers over the age of 

65 and/or who are retired.

From (P) Richard Haase - Graduate Borrower to Everyone:

Great question. Many of these targeted cohorts should be 

relatively easy to establish

From P - Lane Thompson - state agencies to Everyone:

data that could be used as proof of hardship: borrowers with both 

parent plus, and direct loans; borrowers with no permanent 

address/address in prison or jail, borrowers who reflect bankruptcy 

forbearance, borrowers over the age of 65, borrowers who have had 

federal benefits offset; borrowers who have had a $0 IDR payment for 

more than three years

From Sarah Butts, (she/her) A- 4 yr. borrowers to Everyone:
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Negotiated Rulemaking – 11/7/23

Single parent households and/or students with one or more parents 

who are deceased, should be considered for relief.

From P - Wisdom Cole, Civil Rights to Everyone:

Reacted to "Single parent househ..." with ���

From (P) Richard Haase - Graduate Borrower to Everyone:

Should be possible to use available data to identify Joint 

Consolidation borrowers

From John S. Whitelaw, (he/him) Advocacy Director, CLASI 

(Delaware) to Everyone:

Receipt of SNAP within a certain frame

From P-Vincent Andrews-Veteran & Military Groups to Everyone:

The Department has regularly identified active-duty and veteran 

members, and that data could be used to forgive debt after certain 

periods of time. I know the Department has been working to automate 

forgiveness for veterans with total disability, but this process could 

be more automated to include better tracking and automatic forgiveness 

for military or veteran groups.

From P-Sherrie Gammage-4-Yr Borrowers to Everyone:

For Borrowers over 65 years: Discharge loans (ideal) or consider 

a waiver of capitalized interest payments for those over 65 in 

repayment for over XXX years. Why? They have demonstrated a record of 

payment available to the Dept of Ed using servicer records and though 

older aged people are working longer to pay their debt they are 

unlikely to repay full amount of student loans given their 

chronological age.

From P - Wisdom Cole, Civil Rights to Everyone:

+1 Foster Youth

From John S. Whitelaw, (he/him) Advocacy Director, CLASI 

(Delaware) to Everyone:

Receipt of Medicaid within a certain time frame

From P-Sherrie Gammage-4-Yr Borrowers to Everyone:

Reacted to "The Department has r..." with ���

From P-Sherrie Gammage-4-Yr Borrowers to Everyone:

Reacted to "Receipt of Medicaid ..." with ���

From John S. Whitelaw, (he/him) Advocacy Director, CLASI 

(Delaware) to Everyone:

Low Income Subsidy on Medicare Part D

From P-Sherrie Gammage-4-Yr Borrowers to Everyone:

Reacted to "Low Income Subsidy o..." with ���

From John S. Whitelaw, (he/him) Advocacy Director, CLASI 

(Delaware) to Everyone:

Cost-sharing for Medicare (QMB/SLMB/QI).

From Tamy Abernathy - Director, Policy Coordination Group, 

ED to Everyone:

We know these: attended institutions that closed. received 

a Pell Grant. have loans of their own and have borrowed parent 

loans are over a certain age. have loans that predate the 

switch to 100 percent Direct lending in 2010. We know this for some 

periods did not finish their programs. We do not know any of the 

others are on Medicare and do not have a Medicare Income-Related 

Monthly Adjustment Amount, meaning their income is below $97,000 as a 

single individual. receive an Affordable Care Act subsidy, meaning 
75

Negotiated Rulemaking – 11/7/23

they earn less than 400 percent of the Federal poverty guidelines.

have significant child or dependent care expenses. have 

significant medical expenses. have completed a chapter 11 or 

chapter 13 bankruptcy process.

From (P) Jada Sanford - Currently Enrolled to Everyone:

+1 David, using SNAP

From Sarah Butts, (she/her) A- 4 yr. borrowers to Everyone:

+1 for looking at borrower experience over the life course.

From Sarah Butts, (she/her) A- 4 yr. borrowers to Everyone:

+1 using SNAP.

From P-Yael Shavit-State AGs to Everyone:

+1 using SNAP

From A - India Heckstall, Civil Rights Organization to Everyone:

+1 using SNAP

From P - Lane Thompson - state agencies to Everyone:

+1 on Pell eligibility

From Sarah Butts, (she/her) A- 4 yr. borrowers to Everyone:

+1 on Pell eligibility.

From John S. Whitelaw, (he/him) Advocacy Director, CLASI 

(Delaware) to Everyone:

Receipt of subsidized child care

From Kyra Taylor, Nat'l Consumer Law Ctr. to Everyone:

+1 re: using Pell data as criteria for hardship, +1 regarding 

Parent PLUS borrowers that received a Pell grant for their own debt or 

where their child received a Pell grant, +1 re: SNAP benefits (and/or 

receipt of other federal housing subsidies)

From Sarah Butts, (she/her) A- 4 yr. borrowers to Everyone:

+1 on Marital status and single parents/Head of Household. These 

borrowers often work more than one job to support their families and 

may have a middle class income. but still struggle.

From John S. Whitelaw, (he/him) Advocacy Director, CLASI 

(Delaware) to Everyone:

plus 1 to Jalil non exclusive laundry list of indicators of 

hardship, with a catch all for folks who have hardship but aren't 

idendtified by these "proxies"

From P-Sherrie Gammage-4-Yr Borrowers to Everyone:

Loan Discharge or waiver of remaining balances for those who 

receive an Affordable Care Act subsidy, are disabled or over 65 

earning less than 400% of the Federal Poverty guidelines and have a 0 

IDR payment plan for at least 10 years: Rationale: The circumstances 

are unlikely to change given age and ability to continue to work 

lessens with age or with disease progression.

From A - India Heckstall, Civil Rights Organization to Everyone:

+1 Jalil!!!

From A- Susan Teerink - Private non-profit 

institutions to Everyone:

+1 Jalil - comprehensive list

From John S. Whitelaw, (he/him) Advocacy Director, CLASI 

(Delaware) to Everyone:

But more than 4 or 5

From Kyra Taylor, Nat'l Consumer Law Ctr. to Everyone:

LIHEAP (an internet access federal program) also uses Federal 

Housing Public Assistance, Medicaid, SNAP, SSI, Veteran’s Pension & 
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Negotiated Rulemaking – 11/7/23

Survivor’s Benefits, and Tribal Program documentation to streamline 

eligibility 

From (P) Richard Haase - Graduate Borrower to Everyone: 

+1 to Jalil! 

From (A) - David Ramirez - 2yr Borrower to Everyone: 

+1 Jalil 

From Kyra Taylor, Nat'l Consumer Law Ctr. to Everyone: 

Replying to "LIHEAP (an internet ..." 

* home energy assistance program 

From (P) Angelika Williams: Private, Nonprofit 

Institutions to Everyone: 

+1 Kyra 

From A-Jalil Bishop-Student Loan Borrowers-Grad 

Programs to Everyone: 

Replying to "LIHEAP (an internet ..." 

+1 on these programs 

From John S. Whitelaw, (he/him) Advocacy Director, CLASI 

(Delaware) to Everyone: 

Section Vouchers; lving in Public Housing; living in project 

based housing , USDA housing etc; 

From A-Jalil Bishop-Student Loan Borrowers-Grad 

Programs to Everyone: 

Anyone receiving a social assistance/entitlement program. Let 

them self report 

From P - Wisdom Cole, Civil Rights to Everyone: 

The Department can access data on a borrower's educational 

expenses, such as tuition and living costs, which can be used to 

assess financial hardships related to the cost of education. Data on a 

borrower's enrollment status can help determine whether they are 

currently attending school, which may affect their loan repayment 

obligations. 

From Soren Lagaard, Department of Education, OGC to Everyone: 

Please note the student acknowledgement referenced in 34 CFR 

668.605 is not a waiver of discharge, as some of the earlier comments 

suggested. This is a new part of the GE reg that was recently 

published. When that regulation is fully implemented, some current and 

prospective students will have to acknowledge via the Department's 

website that the program that they're enrolling in may not meet 

affordability standards under the new GE regulation. 

 

(ED Note: Files are available on the Department of Education’s 2023-

2024 Neg Reg website)