Negotiated Rulemaking - 12/09/21 

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 DEPARTMENT OF EDUCATION

OFFICE OF POSTSECONDARY EDUCATION

AFFORDABILITY AND STUDENT LOANS COMMITTEE 

NEGOTIATED RULEMAKING SESSION 3, DAY 4, AFTERNOON

December 9, 2021

On the 9th day of December, 2021, the

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

to 4:00 p.m., before Jamie Young, Shorthand Reporter in

the state of New Jersey.
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P R O C E E D I N G S

MS. JEFFRIES: Welcome back, everyone 

from lunch and the break. I am Cindy Jeffries, I will be 

facilitating this afternoon for you. All parties are 

present, so I think we're ready to go. At this point, we 

want to move on to the Borrower Defense papers. There 

are three issues involved there. Issue six, which is 

adjudication, issue seven, which is post adjudication 

and issue eight, which is recovery from institutions. 

They are in one document, but when you get to consensus, 

the consensus will be on the individual issues. Okay. 

Persis, you have your hand up.

MS. YU: Yes, we have not concluded 

the Income Driven Repayment conversation when we went to 

lunch.

MS. JEFFRIES: Well, we are treating 

that like we have any other of the issues that did not 

get to consensus in the fact that it did not pass 

consensus. It is tabled. It is in the list of things to 

circle back to if time permits.

MS. YU: That is not what we agreed to 

before we left for lunch break.

MS. JEFFRIES: What what is it you 

think we agreed to? 

MS. YU: Before we left, Brady asked 
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if we could do a consensus check while I still had my 

hand up and Justin still had his hand up, and we said 

that we would take the consensus check and then we would 

return for those who were voting no would have the 

opportunity to then explain our votes.

MS. JEFFRIES: Okay, we can do that, 

but I am going to remind everyone of your protocols. 

Okay, and in your protocols, it states that in order to 

make the best use of time, which is running short for 

the committee at this time, that your comments be 

limited to new information and not repeating something 

that's already been said. So if that in with that in 

mind, Persis, if you have something new to add, please, 

please go ahead and share.

MS. YU: Well, as we were allowed to 

explain our votes and I am going to and I do want to 

commend the Department on two of the changes, in 

particular about adding defaulted borrowers for Income 

Based Repayment and counting payments before 

consolidation. I think that those are important 

improvements. They are not specifically about the EICR 

plan, though, and so I would like to separate as we 

think about how the Department has proposed here, 

separate those two components. I think those are very 

important, but they really don't get to the bottom line 
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issue of the income contingent or the expanded ICR plan, 

which we've been talking about here. I wanted to again 

remind everyone of what the Department said its proposed 

goals were. And so in again, the first issue paper we 

talked about, the Department asked said the IDR plans 

offer forgiveness of remaining balances after 20 or 25 

years, while this may be appropriate for some of those 

with higher balances, this could be too long to repay 

for borrowers who have low loan amounts or who have low 

incomes for long periods of time. Again, we have seen no 

movement on this issue. We still have 20 years. I have 

proposed several different models in order for us to get 

cancelations sooner, especially for the lowest income 

borrowers. We have not seen movement. This is an area 

that is critically important that we need to get people 

out of debt faster. It is extremely disappointing that 

the Department has been unwilling at this point to move 

on this on this issue. And the last piece that I want to 

say is just in terms of simplicity. I think it was a 

stated goal for simplicity, and this just simply doesn't 

do that. We we we have consensus that we don't like it, 

basically. And the one holdout seems to be the 

Department of Education. So while I like some of the 

changes that the Department has made, they frankly don't 

do enough, and the EICR plan just does not help us at 
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all. And so I I encourage the Department to basically 

start fresh. It had goals. They were good goals that we 

need to be following, but this plan doesn't do it. So 

that's what I have to say and thank you for your time.

MS. JEFFRIES: Thank you, Persis. 

John, do you have something new to to share?

MR. WHITELAW: Yes, very briefly. I 

think just as we went to lunch, the vast, we took the 

vote. The vast majority of negotiators voted no. And 

then we were sent off to lunch with the quote, the 

holdouts will have an opportunity to speak when we come 

back. It is disingenuous at some level to characterize a 

vote where the vast majority of folks voted thumbs down 

and a tiny number of people voted thumbs up as being a 

holdout. I dare venture that if Persis's for want of a 

better word proposal had been put up for a vote, there 

would be a holdout, but it would be a single holdout, 

namely the Department. And so language matters. And to 

characterize a situation where almost everybody 

disagrees with the proposal as a holdout just seems an 

unfair characterization and not helpful in allowing us 

to try to reach consensus. And I will hold my other 

remarks as they are, they were more specific about these 

proposals that we just find extraordinarily 

disappointing. Thank you.
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MS. JEFFRIES: Thank you, John. Okay. 

Seeing no other hands unless any other persons or 

committee people who were not in agreement with it have 

something new to add as to why they were not comfortable 

going with consensus. We will move on to BD at this 

point. Aaron? Please turn your camera on, thank you.

MR. WASHINGTON: Thank you. So before 

we move to Borrower Defense, I just wanted to say that 

we are we think we are very close to reaching a 

consensus on Prison Education Programs. And we can't 

continue that conversation right now because we want to 

get to Borrower Defense. But we would ask for specific 

citations in the regulations so we can solve this issue 

and hopefully get to consensus before we close before we 

close out. So this specific request goes to goes to 

Heather. If you could put specific citations in the 

regulat, in the in the the proposal for a Prison 

Education Programs into the group chat, the Zoom chat, 

that would be really helpful for the Department to take 

back and contemplate whether we can, whether we can make 

changes there that would help us get to consensus.

MS. JEFFRIES: Thank you, Aaron. 

Heather.

DR. PERFETTI: Aaron, Michale, let me 

know before we broke for lunch that you all were looking 
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for some language, I'm not working in the chat, I'm 

working in the document that was distributed and dated 

December 8th. I'm happy to circulate that once I 

directly place some track changes or red lines into that 

document for you and others.

MR. WASHINGTON: Thank you.

MS. JEFFRIES: Thank you, Heather, for 

clarifying that.

MR. WASHINGTON: Just one more 

clarifying question, do you have an idea of when we 

would be able to, the Department, will be able to see 

that, Heather?

DR. PERFETTI: I don't I can't

estimate right now, but I am working on it so I can give 

you an update at some point this afternoon, and 

hopefully we'll have something to bring forward soon.

MR. WASHINGTON: Thank you.

MS. JEFFRIES: Okay. Thank you. 

Alright, with that, it looks like we're ready to move on 

to the Borrower Defense. So if we I'm going to turn it 

over to Jennifer from the Department of Education.

MS. HONG: Great, thank you, Cindy. So 

we are at Borrower Defenses to repayment for this 

afternoon. I know we had a lot of discussion IDR, we're 

hearing you clear as a bell on your feedback, and we 
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will continue to take it under under consideration as we 

move this process forward. Thank you for that. I'm going 

to ask us all to reset because Borrower Defense is an 

important rule. I think it's important to all of us on 

the committee, certainly important to the borrowers that 

we heard from in public comments. So let's reset and 

look at some of the proposed changes here. I don't think 

that you'll tear this one up, Persis. There's three 

documents, three documents in front of you. Again, 

they're the same documents as we had in session two, 

except with the changes, there's the general BD rule and 

that is forty five pages. That's the biggest document. 

Then you have a misrepresentation document and then 

another document on aggressive recruitment. So just to 

keep in mind, when we take consensus check, we're taking 

three consensus check and the first one we're going to 

take is on adjudication, which takes us all the way 

through the two addendum documents, misrep and 

aggressive recruitment all the way up to page forty two 

I'm sorry not forty two, all the way up to page through 

page thirty five and then which will take us to 

reconsideration. We'll take a consensus check on 

reconsideration all the way to page forty two on 

recovery. But at this point in time, I'm going to go 

through the document flag any changes from session two 
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to section three, but also just kind of remind us what 

has changed even from session from the initial proposed 

text. Should I start or should we take Josh's, Josh's, 

do you have a question?

MS. JEFFRIES: Josh, do you have a 

question?

MR. ROVENGER: Yeah, just in terms of 

process, would the Department prefer us to wait till you 

finish going through or as we're hitting certain 

sections, if we have specific comments, would it be 

beneficial to have that discussion at those points?

MS. HONG: Because it's so, so much 

here, I'm assuming that it might be helpful to take it 

at logical stopping points. So what I could do is I 

could speak up to page. Well, it's going to be a lot of 

discussion up to the federal standard because that'll 

include the misrep. So why don't we why don't we let me 

go through the changes all the way through the federal 

standard? And then we could take a pause for questions.

MS. JEFFRIES: Thank you, Josh. That 

was a great question. Thanks for the clarification, 

Jennifer. Okay, so you want to do you want the document 

cued up?

MS. HONG: Yes, that'd be great. Okay, 

so right off the bat, the first few pages are all 
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technical changes we find that we needed to make 

conforming changes to other relevant sections of the 

text. So again, page one termination emergency action 

proceedings. We've had a technical conforming changes to 

cross references. Same with page two. We've added the 

technical change to include a new subpart D all the way 

through page three and four appropriate deletions. So 

we're hearing again, we added on page five the new 

cross-references for the proposed BD rule. Page, 6859 

668.91 on page six, again, same thing conforming 

changes, deletions as necessary and then that will take 

us to, back to the actual document that you all had in 

session two which begins here on page eight. So 

everything prior to page eight is conforming changes and 

then subpart D again is where we're proposing to add the 

new the new rules for Borrower Defense to repayment.

Page nine another conforming change under forbearances. 

Okay. So this takes us to 685.206 and we are at page 10. 

Now we're getting to the actual substance of the rule. 

Actually, this is. Yeah, this is this is the 2019 rule, 

and this is just clarifying that paragraph (e) only 

applies to those. The previous rule, so we talked about 

we wouldn't be able to remove the 2019 rule, but we're 

clarifying that it's applicable for loans first 

disbursed on or after July 1, 2020 and before the 
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effective date of the new rule that we're proposing July 

1, 2023. So that is technical and takes us make 

conforming changes all the way through page 17. Page 18 

discharge of a loan obligation, we've added a new for, 

for discharges of a loan based on Borrower Defense,

Borrower Defenses. Again, just technical conforming 

changes. Page 20, 685.300. Again, adding technical 

change to include the new rule for remedial actions 

regarding the repayment of funds to the Secretary, we 

have to add the new subsection subpart D to ensure that 

that is captured under there and then the new subpart D, 

page 22. This is when we get into the actual substance 

of the new proposed rule, everything before that was to 

make conforming changes on existing language. Okay. And 

just as a reminder, these are for Borrower Defense 

applications received on or after July 1, 2023 and to 

applications pending with the Secretary. So we had some 

discussion on that. Okay, so right off the bat on page 

23, this is the definition section on the Borrower 

Defense rule. One of the things that was discussed in 

great detail in session two was the inclusion of other 

organizations in addition to states. And so what we've 

done here after our discussion is we've inserted 

language. I believe it was legal aid that had proposed 

this and I'm going to go over that with you. This is a 
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new seven at the bottom of page twenty three. The three 

term third party requester means would include a state 

as defined in 600.2, a state attorney general, a state 

oversight or regulatory agency with the authority from 

that state, or romanette two a legal or legal assistance 

organization that A, employs attorneys who are full time 

employees, two provide civil legal assistance on a full 

time basis and three, are continually licensed to 

practice law. And B, is a nonprofit organization that 

provides legal assistance with respect to civil matters 

to low income individuals.

MS. JEFFRIES: Jennifer, for some 

reason, Aaron, stop screen sharing. So the participants 

can't see it. Aaron, are you there?

MR. WASHINGTON: I'm here. Can you all 

just give me one moment (inaudible). I apologize.

MS. HONG: Thank you for your 

patience. We've had some technical difficulties during 

the lunch hour for me as well, so I'm glad I'm actually 

here to see your faces. Well, while Aaron works on that, 

I just wanted to say that this this definition of legal 

assistance, we've got it. We've got them from the whole 

FFEL, from the HEA, from FFEL language section 428, the 

Civil Legal Assistance Attorney Loan Cancelation 

Provision. So we've pretty much borrowed from that 
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statutory definition to include a process by which third 

party requesters can put forward a a group.

MR. WASHINGTON: I'm back. What page 

would you like me to go to?

MS. HONG: If you could go to page 23? 

We're on the third-party requester definition.

MR. WASHINGTON: Thank you.

MS. HONG: Thank you. Okay. Alright. 

So I read the definition, we can discuss it. Let me go 

ahead and keep going here. Let's see. So all this these 

additions, you guys have already seen this. On page 

25however, we have included violation of state law and 

we've defined it here. Violation of state law, borrower 

has a Borrower Defense to repayment under this subpart. 

If the Secretary identifies an act or omission school 

attended by the student that relates to the making of 

the loan for enrollment at the school or the admission 

or the provision of educational services for which the 

loan was provided that would give rise to a cause of 

action against the school under applicable state law.

MS. JEFFRIES: Jennifer, I know you 

said you wanted to wait for it to open up and breaks, 

but Josh has his hand up.

MS. HONG: Sure. Yeah, we could be 

more fluid about it if that's.
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MR. ROVENGER: I'm just getting in 

line. I'm happy to wait. I'm happy to defer if you 

prefer.

MS. JEFFRIES: Okay. Okay, Josh, 

thanks.

MS. HONG: And so that is the general 

section. So we're going to move over here one second. 

Actually. Just one second here. Let me. That's Okay. Let 

me go over the federal standard here, and then we can 

refer to our other documents if we could scroll back up. 

Oh, Okay. After after we've defined, we've inserted the 

term for third party requester, we've defined the 

federal standard. The first one, we've gone over all of 

these, except I just want to point you to the aggressive 

recruitment and misrep language. So we've codified 

aggressive and deceptive recruitment tactics under 34 

CFR Part 668 subpart R, which is the additional 

documentation. We also knew for for this session is that 

we have ensured that the school’s breach of contract and 

failure to perform had to be related to the making of 

Direct loan or provision of educational services for 

Direct loan was received. And that's that amendatory 

language that you see under three. That's always been 

the case substantively, but we just wanted to make that 

clarifying point for you all. So at this point, I'm 
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guessing many of these points may be related to the 

misrep document or the aggressive recruitment document. 

Nothing changed in terms of misrepresentation, if you 

can cue that document, so we could just, so they could 

see it. And then and then we can take a pause there on 

the federal standard. So this is the misrepresentation 

document, which cross references part 668 under general 

provisions. And what we're doing here is we're cross 

referencing in the BD regs misrepresented, definitions 

of misrepresentation and omissions in Subpart F. You've 

seen this document, we discussed this document and we 

didn't make any changes between two and three. Under the 

nature of educational program or institution for, 

668.72, actually, we did some wordsmithing 

misrepresentation concerning the nature of an eligible

institution. Educational program includes, but is not 

limited to false, erroneous or misleading statements 

concerning and then everything that follows. And then on 

page four, sorry, we did make minor changes on page 

four. Under (q), the highlight, “assistance to provide 

the student to obtain a high school diploma for the GED”

as another misrepresentation. That can be used as a 

basis for a BD claim. And again, these are all codified 

under 668 in the general provision section. And moving 

on to page six of the misrep documentation documents, we 
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have a piece of employability of graduates. And again, 

just to remind you, this has all everything that we 

talked about in session, in session two regarding 

licensure pass rates, employment rates, actual rates 

that institution discloses are inflated and then some 

examples of what that might be. Happy to discuss that. 

And then in terms of omission of fact on page seven, 

again, this is all part of misrepresentation. We just 

deleted “knowing” the word, “knowing” under 

misrepresentation. Now we did receive. We did receive 

some feedback on that language from you, Joe, and I 

think if we could, we'd be happy to discuss that here. I 

don't think we were able to give you feedback on it 

during in between sessions because we received it fairly 

recently. So we're happy to discuss your proposal on 

omission of fact. Here. Well, why don't we take a why 

don't we take a pause there and see what Josh and Joe.

MS. JEFFRIES: Okay, I just want to 

make a note here that Michale is coming in as a 

accrediting agencies at the table for this. Okay. So 

Josh.

MR. ROVENGER: Thanks. So before going 

into specifics, just very big picture. I think the 

Department has made a lot of additions. This set of 

proposals that are really meaningful improvements to the 
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BD regs. And while we certainly don't think it's perfect 

right now and hope that the Department remains open to 

improving it, this really does go a long way in 

centering the borrower and ensuring and ensuring that 

they have a pathway to relief when they're when they're 

victimized by a predatory institution. We're, I want to 

start, is on a very kind of technical issue with respect 

to the definition of third party requester and legal 

assistance organization. And just to start off again, we 

are very appreciative of the Department taking this 

proposal because it will ensure that borrowers who might 

not otherwise have a pathway to relief can be 

represented by a legal assistance organization in a 

group effort. I am curious why, so I understand why the 

Department drew on the definition from elsewhere in. But 

I'm curious as to why the Department thinks that both A 

and B in seven romanette two is necessary. Just because 

I guess as I read it, I think it's a pretty technical, 

but I think it's a little clunky right now, and it 

almost could just be B is a nonprofit organization that 

provides legal assistance with respect to civil matters 

to low income individuals without a fee. You know, not 

not a major substantive point, but I think it's 

unnecessarily burden, bulky as it's currently drafted. 

And then the other other piece of this section that I 
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just wanted to flag relates to the inclusion of the 

state the violation of state law constituting a BD 

claim. We're definitely happy to see this as part of the 

definition section. One question I would have for the 

Department is whether an individual who applies on their 

own and not through a group process would be able to 

assert the violation of state law in the initial first 

instance. As I read the reg, I think they can, but I 

just wanted to ensure that that's the Department's 

position as well.

MS. JEFFRIES: Okay. Thank you, Josh.

Jennifer.

MS. HONG: So, yeah, just real 

quickly, just so and we'll get to the individual group 

process. Is your concern I know you said the clunkiness, 

but is it is there an issue with regarding the full time 

requirement?

MR. ROVENGER: No, it's just I just 

don't see why, I guess I don't understand why any of 

that in A is necessary, it's more just a question of why 

any of that needs to be included and where a legal 

assistance organization can be defined just by B alone, 

not a not a major sticking point for us.

MS. HONG: Yeah, I think the idea was 

we were trying to rely on language that already existed. 
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And since this definition existed in the HEA, we've used 

it here.

MS. JEFFRIES: Okay, thank you, 

Jennifer. Joe, you're in the queue next. 

MR. SANDERS: Hi. Thanks. Just wanted 

to really set out some framing here on Borrower Defense 

and not just about session three, but about sort of what 

the Department has put forward consistently throughout 

the rulemaking. You know this this is a big improvement 

over what we have now. That's a big improvement over 

multiple versions of the rule that we've had in the 

past. Consideration of state law claims, consideration 

of group applications. These are big picture benefits to 

borrowers. And so just want to credit the Department for 

their recognition of these principles throughout and 

then working through the details with us in this 

rulemaking. On the definition of omission, I understand 

that I got that to you during the process here. I took a 

survey of a bunch of my constituencies to kind of try to 

get a, you know, we had talked about sort of a best in 

class definition. And so I think after looking at 

several states talking with multiple AGs, the assistant 

attorneys general with expertise in the area, what I 

submitted there is, I think, the most borrower friendly 

standard primarily comes from Massachusetts. If the 
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Department would take a look at that and if any of that 

language can be can be integrated, that would be great, 

but want to acknowledge the Department's removal of 

“knowing” which was really the sort of the basically, we 

had with that with that section, so happy to talk 

through the details on my proposal if you guys have 

questions on that.

MS. HONG: Thank you, Joe, and it was, 

you know, I think this back and forth with state AGs and 

formulating that section was very helpful, and thanks 

for reminding us, yes, we did remove the “knowing” upon 

your council that that would be a good thing to do, and 

we didn't believe we needed it to set the bar that high 

either.

MS. JEFFRIES: Thank you, Jennifer and 

Joe. Jessica.

MS. BARRY: Yeah, thank you. I want to 

start by saying I completely support having standards 

that provide relief to borrowers who are defrauded and 

when financial harms result, but I just continue to have 

significant concerns with this proposal. It's critical 

that the initial claim adjudication process includes 

equitable standards and due process protections for both 

borrowers and institutions to reduce the likelihood of 

erroneous discharges. This means that a process that 
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favors neither students nor institutions gives both 

parties a fair, equal and meaningful opportunity to be 

heard, and is designed to ensure that it will be 

administered fairly from one administration to the next. 

I know we've been concerned in other areas on that, a 

process that lacks equitable standards and due process 

protections, or that favors a discharge for reasons that 

may have no bearing on the quality of the educational 

services provided to the student or the outcomes they 

receive will facilitate erroneous discharges, thereby 

harming students, taxpayers, schools and potentially 

even borrowers. The Department's current proposal does 

not include equitable standards and due processes for 

both borrowers and institutions. That is true of the 

process for initiating claims, evaluating claims and 

reconsidering them after initial adjudication. Although 

I have a number of more specific reservations to the 

proposed language, given my three minutes, I'd simply 

point out that while I'm again in support of providing 

relief to borrowers who have been defrauded and harmed, 

I can't support a rule that doesn't include a fair,

equitable, and impartial process for determining whether 

fraud has in fact occurred and for measuring financial 

harm to students when this is the case. I have some 

specific examples, but I'll let another person speak and 
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I can get back in line. Thank you.

MS. JEFFRIES: Thank you, Jessica. 

Next, we have Misty.

MS. SABOUNEH: So in session two, I 

talked a little bit about the record retention and just 

the security risk that it imposes on both students and 

schools by having to retain records for too long. And I 

appreciate the amended language that now says six years 

from date of separation from the institution. But 

there's three sections, subsections that basically waive 

that limitations period, and I'll drop those in the chat 

just for the Department's reference. But those three 

sections, I think, are probably what would keep me from 

a thumbs up. So I just wanted to call that out because 

my intent is to reach consensus, if at all possible on 

this topic. Thank you.

MS. JEFFRIES: Thank you, Misty. 

Michaela.

MS. MARTIN: Yeah, I am wondering a 

bit about what Jessica means is an equitable process 

because I feel like for like on the one end prioritizing 

an institution, right, which at the end of the day is 

just a building. It's a corporation. Granted, I know 

there might be what like maybe some board of directors 

behind that, right? But that's a relatively small amount 
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of people compared to the thousands of students who have 

been defrauded by institutions and still have no degree 

or recovery for their student loans. The other thing I 

wanted to say is that like, how are you seeing

(inaudible) due process? Because the agency itself does 

have to follow due process requirements and when they're 

adjudicating claims. So while that might not be laid out 

in great detail here, from my understanding like that's 

still to some extent does occur to a large extent, not 

some extent that does happen. And then also, like you 

mentioned, that you would give examples and I have 

serious reservations about these examples that you're 

about to give because in prior sessions, you've given 

examples and given no indication of what they are or any 

proof that they're occurring and they tend to be very 

obscure one-off outliers. And I really have struggled 

with taking them on and being like, oh yeah, this 

happened and I'm like but did it? Or like also where and 

how often is that happening? And I'm sure that we're 

about to do this again. And I just as folks are 

listening, I don't want folks to think that some of 

these examples are happening on a large scale and that 

they're not being addressed appropriately because when 

those things happen, there is recourse and there is 

within the provisions for them to not be having the 
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consequences that you kind of allude to theoretically 

could happen under these provisions.

MS. JEFFRIES: Thank you, Michaela. 

Jessica.

MS. BARRY: Sure, I ensure that the 

examples that I had given have been real examples, in 

many cases, the school doesn't want me to use their name 

and I respect that. The examples, I'm going to share now 

are actually related to the actual text. So I'll just 

start jumping into those and then we can I can open up 

for questions. So my first is on page 22. The Department 

proposes to adjudicate claims concerning conduct that 

had occurred prior to July 1, 2023, using standards that 

took effect on or after that date. As I mentioned in my 

closed school discharge comments on Monday, such 

retroactive application of the rule is prohibited by 

law, absent express statutory authority, we propose that 

the standards apply to claims submitted on or after July 

1, 2023. My next example is page 24. None of the 

proposed standards located in 685.401 B one through 

five, which includes misrepresentation of fact, breach 

of contract and aggressive and deceptive recruit 

recruitment tactics. Not one of these proposed standards 

requires the Department to make a determination of 

reasonable, actual reliance by or material harm to the 
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borrower. As articulated, they would permit the granting 

of a full discharge, even if the act or omission by the 

school was unintentional and the borrower neither relied 

upon it nor suffered any material financial harm. We 

proposed the Department incorporate elements of actual 

reliance, materiality, and financial harm related to the 

claim into the standards. Another example on page 24, 

the favorable judgment standard, proposed at 685.401 B5 

romanette one, does not require that the favorable 

judgment include a determination that the institution 

engaged in conduct that would constitute a Borrower 

Defense or any finding that the borrower reasonably 

relied upon or was otherwise impacted by the conduct and 

suffered material harm. We proposed the Department add 

language that favorable judgment must be related to 

conduct that would constitute a Borrower Defense claim. 

I have other examples, but again, I'll let somebody else 

talk. I don't want to take up all the time.

MS. MACK: Cindy and Josh, you were 

both muted.

MR. ROVENGER: Yeah, I think I'm next, 

I'm just going to jump in. So on retroactivity, I mean, 

as I read this proposal, the Department is only 

recouping from schools if the loan is dispersed after 

July 1, 2023, and that the standards for deciding the 
26

Negotiated Rulemaking - 12/09/21

claims for applications that are pending are only 

related to whether the individual gets Borrower Defense 

relief. And so the question I would have for Jessica is 

what what interest does your constituency or do you have 

at all in that if the point that relates to school 

accountability are plainly not retroactive? I mean, as I 

understand the law on retroactivity there, certainly you 

can't retroactively rule make in a way that's 

disfavorable to a borrower and that takes away rights 

and benefits that have accrued. But there's nothing in 

the law as far as I'm aware. And if there are other 

cases that you know that are different, but there's 

nothing that I'm aware of that would preclude the 

Department from being more generous specifically to the 

borrower. Moving on to the question about reasonable and 

actual reliance, and I know we've hit this at prior 

sessions, but you know. One, I'm just curious how that 

relates to due process at all, because it's not really a 

question of due process. It's it's a concept that some 

states have in their consumer protection laws, although 

a significant number do not for good reason. And so if 

that is related to the due process, I'm interested in 

just learning how. Would also be interested in hearing 

why proprietary institutions believe that a more 

stringent standard as compared to a significant number 
27

Negotiated Rulemaking - 12/09/21

of state standards that do not have actual reliance 

should be utilized. And then the final point in all of 

this that I would raise is, you know, there's kind of 

two components here. There's should the borrower get 

relief and then is the Department going to go after the 

school for recoupment? And so I frankly don't understand 

what the proprietary school's interest is when it comes 

to whether a student should get relief because a school 

defrauded them. I get it that like when it comes to the 

school having to pay for their misconduct on the back 

end, the school certainly has a due process interest in 

that. But I'm not, I'm not aware of any (inaudible) 

against that for-profits would have on the specific 

question of whether a borrower was entitled to relief.

MS. MACK: Joe, please go ahead.

MR. SANDERS: Thanks. I'll be brief in 

the interest of time. Agree with what Josh said. On the 

question of actual reliance, my state and many others 

don't require actual reliance under our UDAP statutes. 

So to the extent that the Department wants to make a 

best in class federal standard for borrowers, actual 

reliance shouldn't be in there. I agree with Josh that 

the separation of whether the borrower gets relief and 

whether the Department recoups from the school should 

really alleviate a lot of institutional concerns with 
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Negotiated Rulemaking - 12/09/21

this section, because the two things are different 

queries. So that would go to the idea of retroactivity, 

that would go to the idea of due process. And I think, 

quite honestly, were any institution to sue on this, 

there would be questions of standing as to whether they 

would have standing to raise a claim against the 

borrower process when there is a separate process for 

institutions. So. That's what I have to add to Josh's 

well-founded points.

MS. JEFFRIES: Thank you, Joe. 

Michaela.

MS. MARTIN: But I have part kind of 

question, maybe kind of a legal question, so like I am 

just a little law student, but from my understanding, 

this isn't like totally doing away with the idea of 

needing a presumption or just creating with the 

reliance. We're creating a presumption of reliance under 

circumstances in which a student is defrauded because we 

say that under these types of situations. Right. You can 

presume that somebody relied on it. For example, when a 

student goes to an institution and they're told either 

they'll be a day student or a night student, and then 

they go to an institution and then that is not actually 

the case, right? Is maybe a bad example, but like if you 

go to an institution thinking, I'm going to be a day 
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Negotiated Rulemaking - 12/09/21

student now, all of my classes are offered at night 

right? They’re, like, how am I going to prove that I 

relied upon my day classes and that that is what caused 

me harm? Right. So instead, we say, is that there's a 

presumption that at the point in which a student was 

told these things that we can, we can just say that that 

they that they relied on them on those statements and 

not fraud. Also, the thing with presumptions is 

typically they're rebuttable, right? So even though we 

say we don't have an explicit requirement for 

presumption, we're not saying that you can't then as an 

institution, if you're being held liable if say, well, 

no, that's that's not the type of thing that we would 

say a student can recover for, right? There is more to 

this process, I think saying that there's no due process 

and there's like it's like making it sound like people 

don't have opportunity here to have a back and forth in 

that. I just don't believe that that's the case at all. 

And then I also am wondering why it is that it is only 

the for-profit institutions that are speaking up right 

now, as if this is somehow a for-profit versus student 

scenario because it's not, right? Also, I just I think 

it just looks really bad, like it really shows it like 

this that it looks like for profits really just are what 

people want to say that they look like. And I just hope 
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Negotiated Rulemaking - 12/09/21

that that isn't the case, and I just hope that you can 

articulate if there is any moving on this for you, 

Jessica because it doesn't sound like there is, it 

doesn't sound like you've come here to do anything other 

than to say no.

MS. JEFFRIES: Thank you, Michaela. 

Daniel, you are up next.

MR. BARKOWITZ: Thanks. I just want to 

dig in a little bit to something Misty asked. I don't 

know if we're here yet. Based on the read through. But 

can I ask the question about group process? It's on page 

31 or do you want me to hold that Jennifer? What would 

your preference be?

MS. HONG: Can you hold it?

MR. BARKOWITZ: For you, I will hold 

it.

MS. HONG: Thank you.

MR. BARKOWITZ: You're welcome.

MS. JEFFRIES: Thank you, Daniel. 

Appreciate it. So seeing no more hands and that section 

Jennifer, how would you like to proceed?

MS. HONG: Now, just keep going and 

get into the group process, and Daniel can ask his 

question.

MS. JEFFRIES: Okay.
31

Negotiated Rulemaking - 12/09/21

MS. HONG: Okay. Okay, so that's the 

federal standard. We've included a legal definition for 

it and third party requesters to include state, state 

AGs, state authorizations.

MS. JEFFRIES: Excuse me, Jennifer. 

Aaron, could you please cue the document?

MS. HONG: Oh, thank you.

MS. JEFFRIES: Thank you.

MS. HONG: Thank you, Aaron. So now we 

just wanted to make that conforming change in the group 

process to include third, a third party requester 

initiated group process inclusive of all the third 

parties that we identified in the first part. We will 

consider a request to form a group upon request from 

third party requesters. The third party requesters must 

identify the group in their application to the 

Department and also include an analysis of why third 

party requester by the third party requester and why BD 

claims should be approved. Also provide evidence beyond 

sworn statements that support each element of the BD 

claim being made and to the extent possible, the names 

and other identifying information about members of the 

group. Also new for session three is that at the bottom 

of page 26, we may consolidate multiple group 

applications across institutions, so we've just made 
32

Negotiated Rulemaking - 12/09/21

that explicit in the regulation. On top of page 27, we 

said that we would respond within 270 days to materially 

complete third party requests. And that response will 

include whether the Department will form a group upon 

the states’ or upon the third parties’ requests. If the 

Department chooses not to form a group, why it did not 

and other info needed to go forward with a group 

formation request. Also new under a new six subsection 

six on page 27 is that a third party requester can 

petition the Department to reconsider formation of a 

group for reasons other than that and other than what 

the Department had already formed a group that includes 

members of the proposed group, so reconsideration 

request to group formation must be received within 90 

days of the initial decision. And we've struck out, we 

struck out the provision that the Department will 

include in the response a definition of the group and 

that's under romanette three in the middle of the page. 

Okay, so move to the borrower status after group 

formation. Again, this is text that we have before, but 

we'll designate a Department official borrowers who had 

a BD application pending will be scooped up with this 

group formation and then they'll be put into forbearance 

or stop collection status as as applicable. New for 

session three, borrowers that that Department can 
33

Negotiated Rulemaking - 12/09/21

identify both defaulted and non-defaulted, we'll go 

ahead and place in forbearance ourselves and stop 

collection, respectively. Every effort will be made to 

identify the group members, but in some cases, some 

borrowers may not be identified in the initial group 

formation. On an opt-in basis such borrower, who is not 

initially identified, will be granted forbearance, stop 

collection as appropriate. We will retroactively apply 

those benefits and no other consequences shall apply. 

And that's why it's important for the third party 

requesters, to the extent possible, help us identify the 

individuals that constitute the group. I will stop there 

for group process. Those are the additions we made under 

685.402 for the group process for Borrower Defense.

MS. JEFFRIES: Okay, thank you. Aaron, 

if you could stop share for now. Thank you. Josh.

MR. ROVENGER: Does Daniel want to go 

first because he technically was-. 

MR. BARKOWITZ: Thank you, Josh. And 

I'll wait. I just want to highlight for the negotiators 

because I think there's some confusion here. There are 

two groups and there are two group processes, and I 

understand why the Department's separated them and they 

have different sets of rules. So my question is actually 

on the other group process, which is the one that's on 
34

Negotiated Rulemaking - 12/09/21

page 31, 32. And that's a group process Secretary 

(inaudible). So I just want to just so everyone's clear, 

there are, in fact, two group processes as envisioned in 

this document.

MS. JEFFRIES: Thank you, Daniel. 

Okay, Josh.

MR. ROVENGER: Thanks. So big picture 

again, we're just thrilled that the Department has 

included additional third party requesters in here. No, 

I think as our prior proposal suggested, I think this 

can be streamlined in a lot of ways, but can certainly 

live with what how the Department has laid this out. I 

think the biggest problem we have right now with the 

proposed regulation relates to evidence beyond sworn 

borrower statements. So I understand why the Department 

is including that requirement. My concern is, I have a 

few concerns about this. First, you know, if a legal aid 

rep, for example, was able to pull together nine hundred 

affidavits from borrowers, like the advocates did in 

the Sweet case and present that as part of a Borrower 

Defense application with nothing more, then this 

regulation would say that's not sufficient, even though 

every affidavit described similar, even if every 

affidavit describes similar conduct. And so I'm 

concerned that there can be, you know, consistent 
35

Negotiated Rulemaking - 12/09/21

statements by borrowers describing exactly how a school 

operated that wouldn't be sufficient for a group 

discharge because of this, this requirement. And so just 

just to put a finer point on it, you know, we've heard a 

lot from Brooks' borrowers and they all shared very 

similar experiences about how this school took advantage 

of them and lied to them. And with this requirement, if 

if I put together an application with them and only,

because the school was long gone, only was able to 

submit all of their affidavits, the Department would be 

saying that that's not sufficient for a group discharge 

and that doesn't just as a matter of kind of evidentiary 

standards and what would be sufficient in court, for 

instance, that just doesn't sit right and seem right to 

me. There's also, frankly kind of the more normative 

element to it, where it almost feels like the Department 

is saying to borrowers like your voice isn't enough. And 

I don't think that's what the Department is intending 

here. But I think that's how it was to my mind. It comes 

across by including this requirement. And then the final 

thing I would note on this is so I understand from an 

efficiency standpoint the Department (inaudible) 

applications that are fulsome and give the Department 

what it needs to make decisions. I would just note, even 

if a group application comes with affidavits describing 
36

Negotiated Rulemaking - 12/09/21

similar conduct, that still puts the Department in a 

better position to make decisions than it would have 

been if it was acting kind of sua sponte and with 

nothing before it. I will come back on for a few more 

minor points.

MS. JEFFRIES: Thank you, Josh. 

Jessica.

MS. BARRY: Yeah, thank you. I just 

want to come back to the Borrower Defense statute, does 

not contemplate a Borrower Defense claim outside of a 

collection proceeding, much less authorize the 

Department to proactively certify a group of borrowers 

and initiate a proceeding without any claim filed or any 

showing that a borrower relied upon or was harmed by 

some act or omission of the institution. We propose that 

the group process elements of the proposal be removed to 

ensure each claim is reviewed on its individual merits 

to ensure equity for borrowers, institutions and 

taxpayers.

MS. JEFFRIES: Thank you, Jessica. 

Josh.

MR. ROVENGER: So I just first have to 

ask how it would be inequitable to institutions to have 

a group process just put that question out there because 

to my mind, it seems like it's focused on one, making 
37

Negotiated Rulemaking - 12/09/21

the process more efficient for everybody and two,

ensuring borrowers that wouldn't otherwise have relief,

get relief. And I think at least everyone has stated 

that they have the borrower's interest in mind. So I 

don't see how getting rid of the group discharge process 

would change that. But moving on to the specific 

questions I have, so in terms of providing a response to 

material complete applications, can the Department shed 

light on what what would constitute a material complete 

application and or whether it intends to provide kind of 

some regulatory guidance on that? Just because I'm 

concerned that a future administration that doesn't want 

to adjudicate third party requester claims will say, 

well, this isn't material complete, so I'm just not 

reviewing it at all. And so just just want to ensure 

that that can't happen. On a similar note the 270 days, 

you know, we'll get to the timeline, which again 

thrilled that the Department has put a timeline in. Two 

hundred and seventy days seems excessive to decide if a 

group is required in light of the two years of 

additional time that the Department would have to decide 

claims. So just just wanted to flag that issue. But my 

real question is about the material complete language.

MS. JEFFRIES: Thank you, Josh. 

Jennifer.
38

Negotiated Rulemaking - 12/09/21

MS. HONG: Yeah, so thank you, Josh. 

And I know throughout this rulemaking there's been an 

interest to include these time frames and, you know, 

regulate the Department, where that's really not where 

we're generally try not to regulate the Department, I 

understand the concerns behind that. And but frankly, if 

if an administration wanted to come and disregard the 

rules, we've seen that happen before. So I don't know 

that putting getting so specific in the regulations is 

necessarily the solution there. So to your first 

question, yes, we could provide something more 

subregulatory on what a complete what constitutes 

materially complete application. There was a lot of back 

and forth about timeframes. There's real hesitancy to 

include include those timeframes. But we have and we've 

landed on kind of what we what we believe are reasonable 

targets for us to meet.

MR. ROVENGER: Okay. Can I respond 

really quickly to that?

MS. JEFFRIES: Sure. Thanks. Go ahead, 

Josh.

MR. ROVENGER: So yeah, I think so I 

think I think subregulatory guidance on that would be 

helpful just so that advocates can ensure that they're 

providing everything that's needed. And hear you on the 
39

Negotiated Rulemaking - 12/09/21

timeline point. I think, you know, if this is what's 

doable, it's what's doable and just having something in 

here to tell the borrower exactly when they're going to 

be having, getting a decision is so critical, and so we 

greatly support the Department's inclusion of the 

timelines.

MS. JEFFRIES: Thank you, Josh. Joe.

MR. SANDERS: Yeah, I just briefly 

want to touch on a point that Jessica made about 

implying that there was some kind of an issue with 

considering a group versus going borrower by borrower by 

borrower. So as a state AG, if I bring a claim in court 

and I show that there's been a violation of my UDAP

statute, I don't have to prove the elements for every 

borrower. We can get relief for for any borrower that we 

can show was was included in harm by a given cause of 

given practice or systemic conduct. So I think that the 

efficiencies involved in the group process far outweigh 

any concern about addressing each claim, in turn, that's 

not standard practice in courts, it doesn't have to be 

standard practice for the Department here and the 

efficiencies that come with adjudicating a group far 

outweigh any benefit that would come from looking 

borrower by borrower. That's just inefficient and would 

just block relief from from getting to people. This is 
40

Negotiated Rulemaking - 12/09/21

not a practice that's outside of norms, and the 

Department should absolutely use it here.

MS. JEFFRIES: Thank you, Joe. 

Michaela.

MS. MARTIN: Yeah, I just wanted to 

make a comment on the use of saying like equity on 

behalf of the institutions, and that if we were going to 

talk about this as a measure of equity, I would 

appreciate that if we also recognize that the students 

who are disproportionately affected by this, especially 

from for-profit colleges, are student parents, 

especially single student parents and students of color 

who have higher rates of enrolling at for-profit 

colleges and much higher rates of taking out an 

egregious amount of student loan debt. And so in terms 

of of equity, I believe that focusing on the student's 

ability to recover and also wanted to mention that like, 

you know, saving taxpayer dollars by not allowing people 

to have group claims, we're actually spending more of 

everybody's resources, including the institution, each 

individual student, and the Department. And so we will 

actually be spending more in adjudicating these cases by 

not having a group discharge process.

MS. JEFFRIES: Thank you, Michaela. 

Joe, do you have your hand back up or is that from 
41

Negotiated Rulemaking - 12/09/21

before? Okay, thank you. Okay. Seeing no other hands 

Jennifer, do you want to move on?

MS. HONG: Yes, we can proceed, and I 

just want to touch back to Daniel's point about 

separating out the group, the other group process. We 

didn't really, I suppose we didn't. It doesn't 

necessarily have to be long or in the section that we 

put it in. And I'd have to go back to see if that was a 

deliberate choice or not, but it could conceivably be 

under the group process section. It's just another way 

in which a group process may be adjudicated. So but 

we'll get there. Aaron, if you could cue the language on 

page twenty nine of the main document, this is an 

individual process for Borrower Defense. And as you can 

see here, nothing has changed from session two to three. 

I I'm not going to go over it, and in general, 

individual borrower submits an application, provides 

evidence, supporting documents, documentation, we'll put 

them on forbearance, stop collections. And that's the 

individual process. Nothing, nothing new from session 

two. Okay, now we're going to move to Daniel's question 

that he had on group process based on prior Secretarial 

final actions. Nothing has changed here. We talked 

pretty extensively in session two on what this means, 

basically in forming a group process under 402B. We can 
42

Negotiated Rulemaking - 12/09/21

also consider if information that we obtain through a 

final program review determination or final audit 

determination defined under section 668.112 A or B. Any 

failure to meet an admin capability requirements, loss 

of eligibility on CDR due to CDR fines, limitations, 

suspension, other emergency actions. That that may 

relate again to the federal standard, including misrep, 

aggressive recruitment or omissions of fact borrowers. 

Any other final actions just making explicit the 

Secretary's authority to utilize this information and 

for an individual to base a BD claim on any of these 

misrepresentations. And no changes there. Page thirty 

two, the institutional response piece. Nothing has 

changed here, either. Just to refresh our memory, we're 

going to notify the institution of basis for group or 

individual defense, Borrower Defense claim, notification 

waives any limitation period by which the Secretary may 

recover (inaudible) from the institution, we’ll request 

a response from the institution within 60 days. We 

talked about this last time and then either the 

institution submit an affidavit to us on a form approved 

by the Secretary and certify that under penalty of 

perjury. And if you don't, and if the institution does 

not respond, the Department official shall presume that 

the institution does not contest the Borrower Defense to
43

Negotiated Rulemaking - 12/09/21

repayment claim. And I'll pause there because I see 

Daniel's hand up.

MS. MACK: Thanks for walking us 

through that Jennifer. I want to note that Bethany is 

back at the table for her constituency of individuals 

with disabilities or groups representing them. Daniel, 

can I turn it over to you?

MR. BARKOWITZ: Yes, I just want to 

echo Misty's concern and see if I can help maybe by 

asking a question, but thank you Misty for raising this. 

So as I see there are three different groups or two 

different ways, there's a group as defined by a third 

party or the Department can define, there's individual,

and then there is group by Secretary action and where I 

want to particularly focus on is on B1 of section 405.

The way I think Misty reads B1 and I would echo that we 

need, I think, better understand this, is that the 

statement is waives any limitation period. So just so I 

understand if we are in year eight beyond which a 

borrower has left the institution and the limitation 

period we know is six years, is that waived or is the 

intention to waive the expiration of any limitation 

period by notification? I don't think the I don't think 

the intent, I want to be clear. I don't think the 

Department's intention is to say the limitation applies 
44

Negotiated Rulemaking - 12/09/21

or the limitation applies, not when someone submits a 

claim because it essentially essentially this clause 

then wipes out any limitation period ever. I think the 

intention is it waives the expiration of of the 

limitation period. So that that's a that's a call, I 

typed that language into the into the chat. But I think 

really it would be helpful to say, waives the expiration 

of any limitation period from that point forward. That's 

really the the key issue here, I believe.

MS. JEFFRIES: Thank you, Daniel. I 

want to note that Emily is taking the table representing 

that veterans and service members. Emily.

MS. DEVITO: Thank you, and I think 

actually Daniel's question may have alleviated my 

concern. I would just want to have an understanding that 

private and nonprofit institutions, if there was a 

notification within the six years that you are amenable 

to maintaining those records in perpetuity with the 

understanding that the argument was based on concerns 

for the information and protecting the student, that 

there is an understanding that if the student has 

indicated that there's information that they would rely 

upon, that I would certainly hope then institutions 

would agree to waiving any sort of recordkeeping 

constraints. And I also was hoping to maybe get clarity 
45

Negotiated Rulemaking - 12/09/21

on and I guess we'll get there. The wanting to also 

strike in totality 685.407 F but is it better to pause 

that until we're further down the line? I just want to 

know if your interest is to strike that in its totality 

or only the parts that are concerning reporting.

MS. JEFFRIES: Okay, thank you. 

Daniel, you have raised your hand, did you want to 

respond to Emily?

MR. BARKOWITZ: I just want to respond 

to Emily. And just to clarify for the Department. I view 

this as no different than being notified of a legal 

issue and being asked to maintain records from a from a 

case of law. So at that point, once notified institution 

has an obligation to retain records related to a legal 

case. I don't view this any differently. But I would 

have objection to that once the limitations period is 

over, somehow then waiving the limitation period, that's 

that's really the concern. So Emily, I support your your 

interpretation as you've expressed it, and I think you 

and I are in alignment.

MS. HONG: That's that's right, I 

mean, how you've characterized it is accurate. So but 

you're suggesting that we work this out a little bit to 

make it, to clarifyMR. BARKOWITZ: Yeah, the language. If 
46

Negotiated Rulemaking - 12/09/21

your legal counsel is comfortable with it, waives the 

expiration of any limitation period. I think I think 

would then further clarify what the intention is, you're 

not waiving the limitation period, you're waiving the 

ability for the limitation period to expire. So you're 

waiving the expiration of any limitation period. 

MS. HONG: Okay, we'll have, we'll 

contemplate that.

MS. JEFFRIES: Thank you, Jennifer and 

Daniel. Josh, thanks for waiting when they had that 

exchange. 

MR. ROVENGER: Sure. Thank you. So my 

comments are about the individual process for Borrower 

Defense 685.403. And these are all things we've 

recommended before. But the first relates to charging 

interest for 180 days while the application is pending. 

In light of the Department's timeline for deciding these 

claims, I think we thought 180 days didn't make sense to 

begin with and don't see the need or the appropriateness 

for it any even more. And so we recommended the 

Department just stops charging a borrower's interest at 

the time the application is filed. Two, you know, again, 

I think we would like to see in the final regs some sort 

of action or remedy that the Department will provide if 

it unlawfully collects during a Borrower Defense 
47

Negotiated Rulemaking - 12/09/21

forbearance, just given the past history with the 

Department and unlawful collections. And then finally, 

for 685.403B would be would continue to recommend 

changing that language so that it makes clear that an 

application to the Secretary is self-evidence of a 

Borrower Defense application, and the borrower can 

provide additional evidence that supports the 

application. If the if the borrower chooses to.

MS. JEFFRIES: Okay. Thank you, Josh. 

Jessica.

MS. BARRY: Sure, I want to go back to 

the individual process, too, and just explain why that 

process for adjudicating individual claims does not 

afford institutions basic due process and fairness 

protection. I think this will provide some examples to 

explain what I'm talking about. The proposed individual 

process does not require the Department to timely notify 

the school that a Borrower Defense claim has been filed 

or to timely provide a copy of the claim that the result 

at the Department can notify the institution weeks or 

months after the claim was received. The proposed 

individual process does not require the Department to 

identify or provide to the institution the documentation 

obtained by the Department or otherwise supplied by a 

borrower in support of the claim, or to identify or 
48

Negotiated Rulemaking - 12/09/21

supply the records the Department official considers 

relevant to the claim. The draft rule does not guarantee 

or even contemplate an opportunity for institutions to 

request reconsideration. I know we're going to get into 

that a little bit further later. There's no time 

limitation whatsoever on a request for reconsideration, 

and we propose all of this. We just propose that the 

Department provide institutions basic due process and 

fairness protections when adjudicating individual claims 

by providing timely notifications, copies of claims, 

time limitation on the student reconsideration process,

and a reconsideration process for institutions. And then 

one more comment I want to make on page 31. The draft 

standard at 685.404 B does not permit an institution the 

opportunity to respond to final actions imposed by the 

Secretary that are later used in the context of a group 

process. This means a final program review or final 

audit determination issued years before the regulation 

takes effect can be used as evidence by the Department 

in the context of a group process. However, the draft 

standard prevents an institution from responding, so we 

would like to see 685.404B removed.

MS. JEFFRIES: Jennifer. Did you have 

a response?

MS. HONG: Yeah, just a quick response 
49

Negotiated Rulemaking - 12/09/21

to that last point, Jessica, just remember that these 

are based on if these are actions arising from final 

program review determination or final audit 

determination that the response is built in from the 

institution. Because the institution will have a time, 

will have an opportunity to respond at the draft stage 

before it is final. So that's it's it's not an 

exclusion. It's built in, it's already built into the 

Secretary's final final actions. So if we if we were to 

add another response period, it would be a second, a 

second response from the institution. Also, I'm just I 

just wanted to see if to some of the others’ point, 

others pointing out the bifurcated process that we've 

proposed to kind of pull the recovery piece away from 

the actual adjudication piece if that, if that gives you 

any kind of assurances, Jessica, in terms of some of 

your concerns.

MS. BARRY: I'll need to talk to my 

constituents before I can respond to that.

MS. JEFFRIES: Okay, thank you, 

Jessica and Jennifer. Josh, I just need to announce that 

Jen has come in representing student borrowers to the 

table. Okay, Josh.

MR. ROVENGER: Thanks. I'm just going 

to pick up on Jennifer's last point there, and I know 
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they're going around in circles on this. But the 

bifurcation of the processes here is pretty critical, I 

would think, for a claim of due process protection. I 

mean, we say due process that has a very technical, 

legal meaning, which first requires you to show a 

property or liberty interest. And I'm not aware of any 

cases, maybe you are Jessica and I'd be interested in 

seeing them, that would provide you or your constituency 

with a due process interest in the Borrower Defense 

adjudication process as opposed to the recoupment

process.

MS. JEFFRIES: Okay, thank you, Josh. 

Okay, seeing no other hands. Jennifer, are you prepared 

to move forward?

MS. HONG: Yes, thank you, Cindy. 

We're moving right along here. So that's institutional 

response on page 32, if we could cue page 33, we have 

made some changes to the Adjudication Borrower Defense 

application section. Okay, down toward the middle of the 

page, new subsection E, we've included a state standard 

review for group claims prior to denial. So this is in 

an advance of a written decision we may conduct or the 

Department can conduct a second adjudication using the 

state law standard. And this is limited to. This is 

limited to third party requesters as defined under 
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685.401 (a)7 romanette one that requests a second 

adjudication process may request a Department official 

to conduct an analysis under standards from that 

requester's state in the case of a partial approval or 

denial under 685.401(d). We ask that you submit the 

specific state standard to be considered as well as a 

legal analysis supporting why the third party requester 

under 685.401(a)7 romanette one believes that the claim 

should be approved under that state standard and any 

additional information reasonably requested by the 

Secretary for the purposes of adjudicating claims under 

the State standard. So this is limited again to states 

and state AGs. Okay, moving over to page 34. 

Adjudication timelines. These are timeframes that we've 

inserted here. We said that for group claims. We're 

going to say two years from notification from the 

Department or reconsideration, and we will be able to 

extend one more year for additional review under state 

law standard, it's two years for individual claimants, 

two years from submission of a materially complete 

application package and application timeframes don't 

apply to reconsideration request. We will provide 

interim updates one year after the start of the clock 

and will include the Department's progress and expected 

timelines. And I want to draw your attention to the very 
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last part of that section six on page 35. Any loans 

covered by BD claims will be deemed unenforceable if the 

Department does not meet these timeframes. So. I'll open 

that up to discussion.

MS. JEFFRIES: Okay, thank you. 

Jennifer. Aaron, if you could stop share, please. Thank 

you. Joe, you're up first. You're on mute, Joe.

MR. SANDERS: These points may bleed 

over somewhat into reconsideration, which I know is the 

next page, but. Just wanted to touch briefly on the 

consideration of State law claims in a group application 

prior to denial. We appreciate the Department providing 

this this opportunity for group claims to consider the 

state law claims up front. Certainly something that 

we're interested in and we appreciate the Department 

including that. You know, as we've stated in the 

previous sessions, we do think that this opportunity 

should also be afforded to individual borrowers. And 

we've urged the Department to continue to consider that 

and we think the reconsideration process is likely to be 

a bar to individual borrowers filing claims. And, you 

know, want to, maybe it's best to hold my 

reconsideration comments until we get to that section, 

unless you want to hear him now, Jennifer. I'll hold 

them.
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MS. JEFFRIES: Thank you, Joe. I just 

want to note that Justin is returning to the table 

representing veterans and service members. Josh.

MR. ROVENGER: Thanks. There are a few 

things I want to talk about with respect to adjudication 

and will start with one that was really critical to my 

constituency, which is respecting the timeline, and I 

can't understate how important this change is given the 

Department's past practice and the need for borrowers to 

to know when they're going to have a BD claim as a claim 

decided. I mean, just just this past Tuesday, Mr. 

Figueroa provided public testimony about how he 

submitted his application in 2016. Still haven't heard 

back. And so I think the Department's inclusion of this 

timeline is a real signal to borrowers like him that 

they take the harm caused by the delay seriously. I also 

really appreciate that the Department has put some meat 

on on what it means that the Department violates that 

timeline and to have the loan deemed unenforceable. I do 

have a question for the Department with respect to that 

freezing, though. I think we have questions as to what 

that practically means. So for example, if a borrower 

was in default at that time, would the borrower have 

renewed eligibility for Title IV funding? Similarly, is 

the Department going to be making updated reports to 
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credit reporting agencies in response to the loan being 

deemed unenforceable? And similarly, like is the 

Department, even if it deems the loan unenforceable, 

still going to decide the Borrower Defense claim to 

fully discharge the loan. You know, I think I think it 

would be helpful for the Department to spell all of that 

out or frankly, to draw on some of the ideas in the 

Student Borrower Protection Center memo on the 

Department Settlement and Compromise Authority to simply 

just discharge the loan. So there's no question about 

the implications of what happens if the Department 

doesn't doesn't follow through. So that's issue one. 

Issue two relates to the state standard. I'll just I'll 

just pick up on where Joe left off that, to my mind if 

so, so we're thrilled to see that the state standard 

constitute a violation of state law constitutes a 

Borrower Defense claim. To my mind, if an individual 

applicant put a violation of state law in their initial 

application, that would constitute a Borrower Defense. 

And if the Department did not consider that in the first 

instance and only did it on reconsideration, it would 

seem to me that that individual would have a pretty 

strong APA claim to challenge the Department's failure 

to consider it in the first instance. And so I would 

urge, like Joe, the Department to consider expanding 
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that initial consideration to individuals who similarly 

launch a state law claim in their BD application. And 

then the final final point, I'll say on this section is 

we continue to have concerns about the contents of the 

denial notice, and we continue to urge the Department to 

consider expanding the language that it has for the 

requirements of denial notices.

MS. JEFFRIES: Okay. Thank you, Josh. 

Daniel.

MR. BARKOWITZ: So since I was one of 

the people who also with Josh, pushed for a timeline, I 

want to express appreciation to the Department for 

setting a timeline here. I think it's very useful and 

very helpful, and I appreciate the movement between week 

two and week three. So thank you to Department for 

setting some timelines that are that are clear. I also 

need some clarity on what unenforceable means. So, for 

example, I added some proposals to the, to the chat, 

which would be could we at the end of that clause if the 

Department's deeming the loan unenforceable, I echo 

Josh's concerns about defaulted students and credit 

bureau reporting. I also would add the concern about 

institutional recovery. So if it's throughout, if the 

Department has basically not been able to process the 

claim, then there should be a specific statement that 
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institutional recovery is waived in that case, because 

the Department has not adjudicated the outcome so, but 

otherwise, again, I'm in support of of this section. I 

appreciate where we've come from where we started.

MS. JEFFRIES: Thank you, Daniel. 

Jessica.

MS. BARRY: Yeah, I just have a 

question for the Department, so can you explain why, why 

you've incorporated a state based standard into the 

proposal when the Department for the last several years 

through the last two administrations indicated that it 

was creating a federal standard and moving away from the 

state based standard concept because of extreme 

administrative burden? Can you explain that 

justification? It appears the draft proposal is contrary 

to the 2016 and 2019 rules.

MS. HONG: So that that is an outcome 

of the discussions that we've had here at this table. I 

think that we, you know, when we got really deeply into 

this, as you might recall with state AGs and with legal 

aid, and we were sufficiently convinced that we wanted 

that there could still be outstanding claims that we 

wanted to make sure that we were able to build a process 

that was both that we both will be able to administer 

but that was encompassing of other definitions of 
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misrepresentation or unfair practices that may be more 

better captured by by some states that have strong 

consumer protection laws. So that was yeah. That's a 

perfect example of how we've come a long way in this 

committee and in terms of taking your suggestions into 

serious consideration and seeing them reflected in the 

regulatory text. I would I would say that we were 

sufficiently convinced after after these deep and 

thoughtful discussions and our consideration of them 

afterward and in the intervening period.

MS. JEFFRIES: Thank you, Jennifer. 

Joe.

MR. SANDERS: Yeah, you know, I just 

want to second what Jennifer said explicitly here. We 

really appreciate the Department considering a state law 

standard and state laws go far beyond what has been 

captured here in the federal regulations, you know? Our 

office brings I'll use unfairness as an example, our 

office brings unfairness claims on a regular basis 

against institutions that would not be captured under 

these regulations. In addition, state law is broad and 

deep in terms of considering claims that that fall 

outside the scope of even consumer protection. So if 

we're talking about sexual harassment claims, if we're 

talking about civil rights claims, there's there are a 
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whole a student's experience with a school is immersive 

and touches on many parts of their lives. Students spend 

their entire lives in the case of traditional students 

within that institution, and so state law had built up 

over a long period of time provides recourse for all the 

different ways that that a student could be harmed when 

they're in that type of immersive environment, and so 

really just want to applaud the Department for 

recognizing the the breadth of protection that state law 

provides here and absolutely think it's founded and 

thank you for including it.

MS. JEFFRIES: Thank you, Joe. Josh.

MR. ROVENGER: Yeah, I'll echo that 

but also applaud the work of the state AGs on this 

issue, I think they've really provided substantial and 

sufficient evidence throughout this rulemaking process 

that would support the Department's change on this and 

that that has really been built up well throughout this 

process.

MS. JEFFRIES: Okay. Thank you, Josh. 

Anyone else before we move on to the last few pages? 

Jessica. 

MS. BARRY: I have just one more 

question, so if the Department does not adjudicate a

claim within two years and then the loan is discharged, 
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I wanted to just confirm that then that won't be 

recouped from the school.

MS. JEFFRIES: The Department may have 

may need a minute to answer that Jessica, so if you want 

to drop that question. Daniel, do you have a response to 

it?

MR. BARKOWITZ: That was Jessica, 

that's exactly the point that I raised, and I added that 

language I'd proposed to put at the end of six, which 

says, basically, if you go back to the end of the clause 

an institutional recovery of 685.409 is waived. So I 

propose adding that clause to the end of this of the 

statement to make that clear.

MS. JEFFRIES: Okay, thank you. Okay. 

I don't see any more hands. I think we can safely move 

on to the last several pages of the document Jennifer.

MS. HONG: Yes, thank you, Cindy. I've 

had trouble getting off mute.

MS. JEFFRIES: Yeah, I've had that 

trouble a couple of times this afternoon. 

MS. HONG: Certain phrases becoming part of our lexicon, 

including you're on mute, you're on mute. Okay. Okay, so 

that's. That is adjudication, so when we take consensus 

check on issue, we've divided it up into three issues 

six, seven, eight, everything up to that point, 
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everything up to reconsideration will be issue six 

adjudication of BD claim. So that includes the federal 

standard, the inclusion of third party requester,

individual process, group process, adjudication. And 

then now we're at reconsideration and then 

reconsideration now repeating myself, which is so 

unclear. Reconsideration through that table at the 

bottom of page 41 will be issue, BD issue six, so that's 

post adjudication. I think we described it in issue 

paper. Okay, so for reconsideration, some changes here 

since session two, new for session three under romanette 

one, we've included administrative or technical errors 

as a basis to request reconsideration. And then we've 

also included if a state or state AG, third party 

requester, request reconsideration, we ask that, you 

know, provide the applicable state law standard, why the 

state or state AG third party requester requests the 

state law standard review, why the state law standard 

would result in a different outcome and why the 

applicable state law standard would lead to BD. Also new 

for session three, if the Department official already 

reviewed under state law standard and it resulted in a 

denial, why its denial was incorrect. And this is 

existing, but we had the reconsideration request must be 

made no later than 90 days from the Department 
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officials’ written decision. And also, this is straight 

out of session two. We just wanted to clarify that that 

the Department will designate a different Department 

official from the first Department official that 

conducted the initial adjudication, so the 

reconsideration will be adjudicated by a different 

Department official. And yes, I'll stop there for 

reconsideration. I see Justin's hand.

MR. HAUSCHILD: Thank you. So I'm just 

going to jump in facilitators, if that's okay. Okay, 

great, so. 

MS. JEFFRIES: I'm sorry, Justin, I 

was on mute. Jennifer's problem. Sorry, go ahead.

MR. HAUSCHILD: No worries. No 

worries. So this is my first time (inaudible) the BD 

stuff so far. So we want to echo some of what Joe and 

Josh have already said in terms of some of the changes 

that have been made. But I want to talk here, of course, 

about reconsideration specifically. I wanted to thank 

the Department for some of the changes they've made 

here, particularly the addition of administrative and 

technical errors. We're supportive of that. I'd actually 

like to ask a clarifying question around that and then 

make an additional point with regard to paragraph F here 

at the end. So can I can I get a clarification from the 
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Department on whether or not they envision 

administrative or technical errors encompassing 

misapplication of the standard to the facts or the 

claim? Rather than, I mean, because otherwise, prior to 

this, it was mainly just new evidence.

MS. HONG: I'm going to let Todd stew 

on that for a second and then I I realized I left off F 

in my summary because that is also new and I just I just 

want to touch on it. I just, to reiterate a Secretary 

may reopen a BD application that was partially or fully 

denied at any time. Just making that explicit and then 

following the rules for placing a borrower in 

forbearance or stop payment collections. And to your 

question again, Justin, can you repeat? Can you repeat 

the question? 

MR. HAUSCHILD: Yep. And I'll let Todd 

maybe Todd wants to jump in before I repeat. Okay, so my 

question specifically is whether the new language, 

administrative or technical errors encompasses the 

misapplication of the standard to facts presented or the 

claim as presented by the borrower. Yeah, so if the 

Department needs a little bit of time to get back me on 

that, feel free. The other question I have with regard 

to F here, it seems, so it looks like it's talking 

about. F only relates to the consideration of evidence 
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not considered in making the previous decision, which 

seems more limited than what the Department discusses 

more broadly here in reconsideration, because we're 

looking at administrative technical errors, you know, 

other evidence, a state law standard. So I'm just 

wondering if if that was intentional or if it would be 

more appropriate for the Department to instead say at 

any time to consider reasons as outlined in A1 under 

this provision. So just kind of wonky, technical but 

curious to get thoughts on that?

MS. JEFFRIES: Okay, thanks, Justin. 

Todd, did you have something to share? (Inaudible)

MR. DAVIS: Justin, I'm going to half 

answer your question the first one here on the, my 

inclination is that it would constitute an 

administrative error, the misapplication that you were 

referring to. But I would want to take a little time on 

this to make sure that we're. You know, I would like 

this to match up other places where the Department might 

have a reconsideration standard. You know, I think we 

want to encompass what you just, the misapplication of 

facts as a potential place here. Just the technical way 

that we write it in here. I want to make sure we're not 

hurting ourselves by not including it specifically, but 

I just kind of want to hope that eases your mind a 
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little bit on the bigger question. And then a couple 

other things while we're here and I don't mean to be in 

front of either Justin or Jessica here, Josh, all the 

way back on your definition for everyone. I had kind of 

gone back and forth with Josh in the chat quite a while 

ago about the definition of third party requester or 

other types of legal assistance organizations. 

Generally, we agree with you, Josh, that that language 

is duplicative and I think we can trim it down. I think 

we do want to be specific to the language I put in 

there. Not necessarily. We might strike the whole thing 

and rewrite it, not sort of try to do it halfway. And I 

feel like I'm missing one more, but that's the first 

two. Oh, and then the other thing on the unenforceable, 

to Jessica and Daniel's discussion last time, the 

unenforceable versus BD discharge. You know, our 

position is that if something becomes unenforceable, you 

know, we could not go into a recoupment proceeding in 

that I'd be interested. Whereas if we grant a BD claim, 

then we can recoup. But I don't know that Daniel's 

language that says we waive it, I mean, I'm not sure 

that there's anything to waive. Once it becomes 

unenforceable, I think it's not, the recoupment is not 

there. So if other people disagree or have suggestions 

on, you know, other alternatives, but I hope that 
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answers the question a little more specifically.

MS. JEFFRIES: Okay, thank you, Todd. 

Jessica.

MS. BARRY: Daniel, did you want to 

speak to that because I was going to bring up something 

else?

MR. BARKOWITZ: Go for it, Jessica, 

you're fine. Thank you.

MS. BARRY: Okay, great. So I just 

wanted to express our concern with the consideration 

language. The draft rule does not guarantee or even 

contemplate an opportunity for institutions to request 

reconsideration while granting a right to reconsider 

reconsideration to any individual or borrower from a 

group or to any state, state attorney general, or state 

oversight or regulatory agency. If an institution has 

new and relevant evidence that is likely to change the 

prior determination, it's in the best interest of the 

Department and the taxpayer that it be reviewed, and it 

increases the likelihood of a just and accurate outcome, 

which should be the primary goal of the claim process. 

Also, the draft rule places no time limitation 

whatsoever on a request for reconsideration by a state 

or state agency or by the Secretary, with the result 

that institutions could be required to defend a Borrower 
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Defense claim decades after it was first filed many 

times over. And even when a prior adjudication 

determined no responsibility on the part of the 

institution.

MS. JEFFRIES: Okay, thank you, 

Jessica. I just want to note that Emily is coming back 

to the table for veterans and service members. Josh.

MR. ROVENGER: Thank you. So I guess a 

follow up for Todd and possibly another question for 

Todd. So the first is on the on the unenforceable 

language. Is there any insight that you can provide as 

to what it would mean for the borrower because I just 

think that would be helpful as to how to our comfort 

level in that language? And then the second I put a 

question in the chat, whether I'm reading this 

reconsideration language correctly, that so A refers to 

the merits of the group Borrower Defense and then A1 

refers to an individual or borrower from the group. So I 

get the individual from the group can seek 

reconsideration of a group decision. But can an 

individual outside of the group process seek 

reconsideration of an individual application? And then 

finally, I know I'm just going to tape record myself and 

play it on repeat here, but I still don't understand 

what the institution's property or liberty interest is 
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on reconsideration here as well, given the separation 

between the Borrower Defense process and recruitment.

MS. JEFFRIES: Okay. Thank you. I see 

a message here that some parties would like to take a 

quick, quick break, so Emily, could you hold your 

comment and we'll take maybe a 10 minute break and come 

back and pick up with yours and then finish up the BDR? 

Is that okay? Alright. Thanks. Okay, welcome back from 

that break, I hope everyone feels refreshed and had a 

chance to stretch, I know I did. So with that, we'll 

pick back up where we were at. We have several hands 

here. We just want to ask Todd, did you have a response 

to something that has been put out there or?

MR. DAVIS: No, you can go ahead with 

Emily. I can wait my turn this time.

MS. JEFFRIES: Alright, great. Thanks, 

Todd. Let's see, Emily, you were up when we took our 

break, so I'm going to jump over to you.

MS. DEVITO: Thank you. So I just 

wanted to get clarity. So F Under Reconsideration is one 

of the items Misty had shared earlier would need to be 

struck in its entirety in order for that constituency to 

reach consensus. I want one, I guess clarity. Is it the 

entirety of this language or is there just one 

particular part that's problematic? And is it like 
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Daniel mentioned before? Not really a matter of needing 

to strike this language, but just clarify on the before 

or after six years for the original claim and 

particularly for this section. With with clarity and 

language, if a claim is from pre six years and is denied 

that there is a level of comfort in maintaining those 

records in perpetuity in the case that that claim might 

be reconsidered after six years. So any clarity on this 

and also on the record for the previous the other 

sections as well.

MS. JEFFRIES: Okay, thank you, Emily. 

I believe I heard that was a question. Was that a 

question for Misty, correct? She's up next in the queue 

anyway, so Misty.

MS. SABOUNEH: Perfect timing. So 

thank you. I did kind of want to clarify and look back 

on my comments earlier because I do think we're aligned 

on an intent standpoint from what I'm hearing from 

Jennifer and everyone. It's more just the way it's the 

languages is. So the intent, I think, is if it is a sixyear period and schools are required to retain records 

for six years. And recoupment can happen. The waive to 

the limitation period is where I have an issue. It's 

685.405 B1. So if I could understand why this is here, 

because it seems like there is an intent to keep that 
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six-year window.

MS. JEFFRIES: Todd, I see you itching 

there to jump in. So please do.

MR. DAVIS: Well, this was one of the 

things I did want to kind of want to go back to. Misty, 

did you say B1, B as in boy?

MS. SABOUNEH: I didn't mean to not 

answer your question because I don't want to strike 

685.407 F if we’re justdelineating that recoupment

period is the six years. And if there was an open claim, 

that makes sense to have a file retention if it's 

reassessed, but it's really just the reopening at any 

point language.

MR. DAVIS: Yes, my comment might be 

helpful here. So in that regard, I do think we should go 

back. That was one of my two things here to go back to 

this particular provision. We do think of this in 

connection with like statutes of limitations in 

litigation, right? And when and we would call it, we 

would toll the limitations period as opposed to all the 

language we've been using. So maybe we could change 

this. I think the Department would be open to changing 

this to something like the notification in subsection A 

of this section tolls the limitation period by which the 

Secretary may recover from the institution under 
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685.209. Daniel, I see you nodding. That may be kind of 

what you were getting to earlier. I don't know if that 

helps in particular there. I can wait. I have one other 

small note, but I think it would be helpful just on the 

685.407A, which was the question about can individuals 

and groups, are we being clear enough that everyone has 

the same rights to reconsideration? The Department did 

not intend to limit that to a particular group, and I 

think if we strike the word group, both places in 

685.407A, we would probably get where where we intended 

to be. Thank you all.

MS. JEFFRIES: Thank you, Todd. I just 

want to circle back and Emily. Did you did you get your 

question answered, and Misty, do you two need more 

dialog?

MS. DEVITO: I think I do want and 

sort of circling back to before to just have a level of 

understanding on the record, I saw good visual clues, 

but that that your constituency's understanding is as 

Daniel shared, and that if someone has a claim within 

that six years, there is an acceptance that you would 

maintain those those records and that it's really just 

that which side of the six years it's on.

MS. JEFFRIES: Okay. Thank you.

MS. SABOUNEH: I just wanted to add 
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into along those lines, 685.409C2 is the other section 

that I put in the chat that we feel is problematic, that 

it appears to waive that six-year retention period and 

the ability to recover. So those are the two sticking 

points.

MS. JEFFRIES: Okay, thank you, Misty 

and Emily and Todd. Daniel.

MR. BARKOWITZ: If I can, we'll get to 

609, 409 rather later, but in the in the section right 

here that we're talking about 407, this is my eagle eye 

comment for the afternoon, Jennifer, and you're welcome. 

If I look at 407 and the clause we're looking at the 

very last section. It references a section that doesn't 

exist. So at least that I can find. So it references 

402D, Roman numeral II. I think that means because I 

can't find a Roman numeral II. I think that means 402D, 

I'm sorry. That would be Roman numeral two rather than 

Arabic numeral 2. Sorry, let me back up. So what's there 

is 402D the Arabic numeral 2. I think it means for 402D 

Roman numeral II because when I look for a 402D, the 

Arabic numeral 2, I don't see one.

MS. HONG: That's conceivable. And 

given your record here, I think you're right. I'm going 

to lean on you. We're going to I and then I'm going to 

suggest that we cue the document but the toll, the tolls 
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language and the deletion, you know, the clarification 

of the reconsideration and then this technical edit on 

the document. I just also wanted to add about the 

records retention issue. This was discussed extensively 

in the 2016 rulemaking, and I think we talked about this 

before about the types of documents that would be 

solicited from an institution related to a BD claim, not 

being those documents that are subject to the records 

retention provision. And I just want to put that out 

there again because we did talk about that. I think I 

forwarded the discussion in 2016 to you Daniel as well.

MR. BARKOWITZ: You did. And again, it 

alleviated my concern about the three year versus six 

year, and I want to again applaud the Department for 

moving from lifetime to six years. That is much more 

comfortable. I remind us we started a lifetime when we 

began this conversation, so I'm personally in my 

constituency very comfortable with a six-year 

limitation.

MS. JEFFRIES: Alright, thank you. Two 

things Justin is back in for veterans and service 

members at the table, and I want to remind those who 

have registered for public comment. Please log in early. 

We are approximately 12 minutes away, 17 minutes away, 

sorry from public comments, so we encourage you to log 
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in. Justin.

MR. HAUSCHILD: Yeah, just real quick. 

Circling back to one of my earlier questions around F, 

wanted just to get a response from the Department on 

whether it was intentional to limit the Secretary's 

unilateral authority under F to just considering 

evidence not considered in making the previous decision, 

or whether the Department would be amenable to changing 

that language to something along the lines of to 

consider reasons as set forth under A1. Which is more 

which is more expansive, obviously.

MS. JEFFRIES: Thank you, Justin. I'm 

going to encourage, given the number of suggestions and 

proposals want to encourage people to put them into the 

chat. So that they are not lost track of. Josh, you are 

next.

MR. ROVENGER: Thanks, I actually have 

a technical question, so I would like to call a caucus 

with some constituencies, but I'm happy to do it at 4:00 

p.m. if that can be accommodated and if folks can stick 

around particularly interested in chatting with state 

higher education executive officers, financial aid 

administrators, two your public institutions, for year 

public institutions, private nonprofits, minority 

serving institutions, FFEL lenders and accrediting 
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agencies. I don't know if those folks can stick around 

at 4:00, but that may be the most efficient way to do 

this.

MS. JEFFRIES: Do I see any objections 

to that, people not being able to stick around?

MS. O'CONNELL: I have a 4:15.

MR. ROVENGER: I think it will be. I 

don't think it'll be long. And it also to the extent 

dependent students, independent students, student loan 

borrowers, attorneys general, or military service 

members would like to attend as well I'm comfortable 

with that, but wouldn't wouldn't require to the extent 

that's permitted.

MS. JEFFRIES: Justin or Josh, I 

appreciate the fact that you're willing to hold this at 

4:00 p.m. after session so that we can utilize these 

last 15 minutes to try to at least get through the 

discussion piece or the outline of this entire document 

so that we could then pick up in the morning, giving the 

Department time to look over these suggestions and 

proposals. And we could pick back up in the morning of 

this. So if that's okay, we'll go ahead and we can set 

that up for you at four o'clock. Okay, did you have 

something else, Josh? Okay. Thanks, David.

DR. TANDBERG: Sorry, I meant to put 
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my hand down, I was just going to suggest veterans and 

AGs to join Josh's caucus, so apologies.

MS. JEFFRIES: Okay, Okay, okay. I 

don't see any more hands. So Jennifer, do you want to 

walk us through the rest of the document?

MS. HONG: Yes. And if we could just 

cue the document, I just want to flag those three 

issues. Just by comment bubble real quick, just because 

I don't want to lose them. Thank you, Aaron. So under 

reconsideration, if you could just flag a comment bubble 

under group under A. Just throw a comment about 

applicability of reconsideration. Thank you. On page 37, 

this is Justin's issue. The phrase “evidence that was 

not considered” to just flag that. And just put a note 

Justin, or maybe, yeah, I'll remember that, and then 

also page 32 B1. Just flag and you just put like 

tolling, tolls language, and we'll revisit that with 

OGC. And then we had the little nit cross reference from 

Daniel.

MR. WASHINGTON: Toll like a toll 

booth?

MS. HONG: Yeah, just toll, yeah, 

(inaudible) and then. Okay. Daniel, I'm sorry, what page 

was that?

MR. BARKOWITZ: That was also page 37, 
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so in the same section after Justin, it's the reference 

to the pieces in 402. So Aaron, it's the references to 

402D2 and 402D3. Those two references appear to go 

nowhere.

MS. HONG: Thank you. And then 

whenever you're ready, Aaron, we can move on to section 

page 38, section 685.408, , which we've more 

appropriately renamed discharge. Because that's what it 

is, discharge rather than relief. So, discharge amounts. 

We talked a lot about this. I know there was a lot of 

discussion about partial, full relief, so we cleaned up 

some of the language under A. Just made it cleaner. 

Deleted“rebuttable”. And added. So there is a 

presumption that a borrower with an approved claim under 

406C and 406B is eligible for full discharge of the 

federal student loans associated with an approved 

Borrower Defense claim unless Department officials 

presented with clear and convincing countervailing 

evidence. And we may rebut the presumption that the 

borrowers are eligible for full discharge under these 

two conditions and we took we landed here after the 

discussion that we had at the table regarding partial 

discharge. And just to state very cleanly that one, 

either the conduct that resulted in the approved 

Borrower Defense claim relates to an easily quantifiable 
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sum and was not the reason or an enticement for a 

borrower to enroll in that program or institution, in 

which case the relief is equal to that sum or two, the 

conduct that resulted in approved Borrower Defense claim 

related to misrepresentations that did not involve the 

outcomes or quality of educational services. In that 

case, the amount of discharge provided would be tied to 

the level of harm experienced by the borrower as a 

result of the misrepresentation. So. Okay, so under C, 

the Department official recommends an appropriate amount 

of discharge to the Secretary, which may include 

discharge of all amounts owed on the loan at issue and 

the reimbursement of amounts previously collected by the 

Secretary on the loan an easily quantifiable 

quantifiable amount, or 25 percent if the amount is not 

easily quantifiable, but less than the full amount of 

the loan or loans related to the claim. And we've 

included this for those examples that we provided 

previously, but we have revised the table that begins at 

the bottom of page 39. All the other edits on page 39 

are technical in terms of just saying discharge more 

straightforward than relief. So, for example, scenario 

one, let's say the conduct that resulted in the approved

Borrower Defense claim related to misrepresentations 

that did not involve the outcomes or quality of 
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educational services. And so that was that is here's an 

example of B2. So in this case, a school intentionally 

reports false statistics about the incoming test scores 

of students in one of the selective graduate programs to 

an organization to an organization that publishes a 

national ranking of those programs. The incorrect 

information causes a program to be ranked higher than it 

would have been otherwise. And the appropriate relief 

would be that the borrower may be entitled to a partial 

loan discharge. The higher ranking could reasonably be 

expected to encourage a borrower to apply to and then 

attend the program. But the misrepresentation did not 

speak to the actual education delivered. Accordingly, 

the appropriate discharge amount would be the extent to 

which the student took on greater debt to attend that 

program than they would have compared to other similarly 

selective programs. For example, if typical debt at the 

program within the representation was $75,000 and in 

similar programs, it was $50,000, the borrower should 

receive $25,000 in loan discharges. If the Department 

cannot calculate the typical debt at a similar program, 

then borrowers would receive a 25 percent discharge. And 

we're recognizing that scenario as distinctive from from 

others. So, for example, the next one. Scenario two 

here. This is a case in which a school misrepresents the 
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bar passage rate of students in its law school program 

to a national ranking of legal programs. The actual bar 

passage rate is significantly lower. In this case, the 

borrower would receive a complete loan discharge, a full 

discharge. Though not directly provided to the 

student,the misrepresentation inaccurately reflected the 

likelihood that a borrower would be able to pass the bar 

exam and thus work in the profession for which they are 

trained. So we're trying to capture the nuance there 

between the differences between one and two. And 

finally, scenario let's see, yeah there's two more 

scenarios, the third one is easily quantifiable one and 

this one we actually talked about last time. School 

represents to current and prospective students and 

widely disseminated materials that is required, its 

required books and materials to complete the program 

cost twelve hundred. It can only be purchased for the 

institution, but then charges fifteen hundred. So then 

the appropriate relief would be three hundred, partial 

relief for 300 for the difference. And again, we also 

talked about the the next scenario is also a similar 

scenario to the one right above it. So I see hands 

raised, and I will go on mute.

MS. MACK: Justin, go ahead.

MR. HAUSCHILD: Thanks. So I'll be 
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very quick, I'm sure other people talk about other 

issues. I just want to thank the Department for 

abandoning this, this concept of systemic problems. So 

that's all I have to say. Thank you.

MS. JEFFRIES: Thanks, Justin. Josh.

MR. ROVENGER: Yeah, I'll echo that, 

and I'll also echo appreciation that the Department has, 

at least in my mind, strengthened the presumption in 

favor of full relief. With respect to the two specific 

categories. So the first, as it relates to the easily 

quantifiable sum, so I can live with that language and 

particularly can live with the examples that are 

provided. I would urge the Department when it issues the 

NPRM to include as many similar and like examples as 

possible, just to make abundantly clear that when the 

language is interpreted in the future, it is cabbaged 

to the kind of specific set of examples. So that's 

category one. Category two, I struggle with a bit in 

particular. So the example that's provided as a school 

intentionally reporting false statistics about test 

scores to relate to kind of its selectivity. I guess to 

my mind, that's still connected to the quality of 

educational services and or purporting to be about the 

quality of educational services. And so I'm not quite 

sure that that kind of fits the language that's 
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provided. And again, I think so putting aside the 

question of whether those students should receive a 

Borrower Defense, I think I would say say yes, that they 

should get a full Borrower Defense. I think reasonable 

minds may say no. We would again urge the Department to 

take out that provision and just deal with that in the 

definition of what constitutes a Borrower Defense. And 

if the Department wants to say something like a school 

intentionally reporting false statistics about the 

incoming test scores of students in a selective graduate 

program does not constitute a Borrower Defense, I think 

we could live with that rather than opening up this 

category in the relief section that could be abused by 

future administrations.

MS. JEFFRIES: Thank you, Josh. Joe, 

you're up next.

MR. SANDERS: Yeah, I think this is 

the same thing Josh is saying, but I highlighted. Well, 

maybe it's not. Maybe it's not the same thing. Anyway, 

I'm on 685.408B2. And I I just. I'm not sure I have a 

full grasp on the phrase, “did not involve the outcomes 

or quality of educational services”. So I'm just, I feel 

like that is gray in terms of like what claims would 

would fall under that that category and so I would urge 

the Department to provide more clarity there. I'm not 
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sure what that means, and it seems like it could be a a 

way around the presumption of full discharge. Thank you.

MS. JEFFRIES: Thank you, Joe. Josh, 

you're up next and we are two minutes from public 

comment. Oh, there you are.

MR. ROVENGER: I'll be quick. I just 

saw we're low on time, and so thought it might be useful 

just to kind of wrap back to the public comment on 

Tuesday. And Carissa's Story, who attended Brooks, and 

she discussed all of the stress that has been involved 

in her life and delayed major events in her life. And I 

think her story captured how “full relief” we use that 

term. It's actually a misnomer. Full relief is not 

actually full relief and can't fully remedy the harm 

that these individuals have experienced. And so I kind 

of just wanted to end what I had to say today on that on 

her story in that note.

MS. JEFFRIES: Okay, thank you, Josh. 

Alright, with that, we will be moving to public comment. 

We will pick back up with Borrower Defense in the 

morning. I'd like to remind everyone this is the last 

day of public comment.

MR. ROBERTS: Are you ready for the 

first speaker, Cindy?

MS. JEFFRIES: I think we are. Yes.
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MR. ROBERTS: Alright. I'm admitting 

Carol Hix, who is representing themselves.

MS. JEFFRIES: There she is, Ms. Hix, 

can you hear us?

MS. HIX: I can. Yes. Thank you. 

MS. JEFFRIES: Okay. Alright. Welcome. 

And you will have three minutes for your public comment.

MS. HIX: Okay. Are we ready now? I 

apologize.

MS. JEFFRIES: Yes, whenever you 

start. Yeah. 

MS. HIX: Thank you. Good afternoon. 

My name is Carolyn Hix. I am a spouse of a veteran and a 

mother of four. I wanted to provide a good life for my 

children by going to college. Sadly, after attending 

three for-profit colleges, I feel like I have hurt my 

family instead of helping them. In 1996, I attended 

Blair College in Colorado Springs, a for-profit college,

because they branded themselves as a military friendly 

college and said they offered discounts for military 

connected students. Seeing that my tuition fees were 

still high, I asked how those discounts were applied, 

but Blair only offered confusion, confusional answers. 

Blair College also told me that my credits would 

transfer elsewhere if I needed to relocate. When I was 
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just a few credits shy of completing my associates in

business, my family was had received orders to move to 

Germany. After arriving in Germany, I attempted to 

complete my degree through the program offered on the 

base, but I was told that none of my credits from Blair 

would transfer. Upon returning to the states I was 

trying. I tried to transfer to Central Texas College, 

but I was told by them that they would also not accept 

any of my college credits from Blair. I remember sitting 

in the parking lot of the college crying. I looked all 

over and tried to find a college that would accept my 

credits. I finally found American Intercontinental 

University online, another for-profit college, and it 

allowed me to transfer my credits from Blair. AIU told 

me that they were also a military friendly school, and I 

was told that they were also a Department of Education 

accredited college. They also told me that I would 

receive military discounts as a dependent and that these 

were high, but I never saw the military discounts. My 

classes were five weeks long and online. I never took 

any final exams, which I found to be odd. Upon 

graduating in 2005, I requested assistance with job 

search, which I was originally promised to. But when AIU 

just directed me to read a website and never returning 

my calls. I later decided to earn my master's degree in 
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mental health. Once again, I found it difficult to find 

a school that would recognize my diploma. Capella 

University accepted me into their master's program after 

I saw them at a career fair that was held at Fort 

Gordon, Georgia. There was no entrance exam or no 

finals. The fees were outrageous, and the school claims 

to be a yellow ribbon college. Even though I did 

completed my degree, I still haven't passed my licensing 

exam after four attempts because I did not learn the 

materials needed to. I am now over my head in student 

loan debt because of these high costs of completing my 

degree and my children are in college now and I have 

ensured that they are attending, that they are not 

attending for-profit schools and I am hoping that our 

government can protect colleges and students and 

military connected families by not allowing for-profit 

colleges to take advantage of them anymore. Thank you.

MS. JEFFRIES: Thank you, Ms. Hix. 

Brady, who do we have next?

MR. ROBERTS: Cindy, I admitted 

Professor Mona Alsoraimi Espiritu, who is representing 

themselves.

MS. JEFFRIES: Okay. Good afternoon, 

Dr., are you ready? I see you're on mute. Can you unmute 

yourself? Thank you. Can you hear us?
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MS. ESPIRITU: Yes, I can.

MS. JEFFRIES: Perfect. You will have 

three minutes for your comment. And that three minutes 

will commence when you begin speaking.

MS. ESPIRITU: Thank you. My name is 

Mona Alsoraimi Espiritu, and I'm from San Diego, 

California, I served in Jordan 27 months from 2011 to 

2013, in Mongolia for eight months from 2009 to 2010. 

Two years ago, my husband and I both are PCBs who now 

work in public higher education had our second child. 

We've been crunching the numbers. We had been crunching 

the numbers since before he was conceived, two kids 

meant a very tight financial squeeze, especially with my 

income driven loan payment of $700 a month and the 

$3,000 a month for child care for two kids when I return 

to work. A silver lining of the pandemic was loan 

forbearance. As we approach January and the loan 

repayment looms near our financial anxiety builds. I've 

considered taking on babysitting jobs in the evening or 

during the breaks to to bring an extra income, driving 

Lyft, or tutoring on the weekends instead of spending 

time with my family. I cannot imagine how a mother of 

two working full time as a professor would stay sane in 

that situation. But this is our current reality. As the 

child of immigrants, I was encouraged to go to school 
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but had no support. I worked through community college 

and as a result did not qualify for any financial aid at 

the university I attended. Loans were a means to an end 

for me. I was the first to graduate in my family and 

much to my industrious parents' dismay, I chose a life 

of service. The value of service was important, but more 

than anything, my parents wanted me to be comfortable. I 

assured them that Peace Corps would take care of us 

since we were sacrificing two years of our lives to 

serve our country. In many ways, that was true. When I 

became chronically ill in Mongolia as a result of the 

climate and air quality in the winter, I was given 

medical care and was medically separated back to the 

states with the knowledge that I could serve again in a 

warmer weather country. I attended graduate school, 

reapplied for Peace Corps, and was placed in Jordan 

within two years of coming home. Before departing before 

departing for both Mongolia and Jordan, I researched 

loans since that was a significant concern for me. I was 

pleased to learn from both Peace Corps and loan 

servicers that my loans could be deferred. I wanted to 

serve and deferment, although not ideal, made it 

possible. Materials from the Peace Corps and staff at 

staging confirmed that deferral was my only option. In 

Jordan, I actually consulted with a Peace Corps 
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administrator a couple of times regarding loan concerns. 

I was getting older and saw the amount I owed grow 

significantly and feared a life of debt. Peace Corps 

staff told me that I should consider consolidating my 

loans privately at a lower rate. Thankfully, I did not 

consolidate my loans privately despite that advice. 

Peace Corps staff, although caring and helpful, didn't 

have the tools or knowledge to assist volunteers in 

making these critical decisions. I am now a tenured 

professor of English at an urban core community college 

I serve, we serve a significant number of black, brown 

and low income and homeless students. I was a city 

college student myself approximately 20 years ago, and 

I'm grateful to serve my community in this way. I 

regularly engage with students who are changing their 

family's trajectory, and it fills me with hope and joy. 

The work we do as public servants is important both in 

the Peace Corps and back home. Our country is better off 

because of it. It seems only fair that those of usThank you.

MS. JEFFRIES: Thank you very much. 

Brady, who's next, please?

MR. ROBERTS: Yeah, I just admitted 

Sarah Partridge, who's the executive director of the N. 

Joyce Payne Center for Social Justice at the Thurgood 
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Marshall College.

MS. PARTRIDGE: I regularly engage 

with students who are changing their families through-. 

MS. JEFFRIES: Good afternoon, Ms. 

Partridge. If you could stop your live stream or turn 

the volume down, it would be helpful for you. Thanks for 

joining us this afternoon. You will have three minutes 

for your public comment and that will start whenever 

you're ready.

MS. PARTRIDGE: Thank you for having 

me here today. My name is Sarah Partridge, and I'm a 

research fellow at the Dr. N. Joyce Payne Center for 

Social Justice at the Thurgood Marshall College Fund. 

Our organization uses academic research from HBCUs to 

advocate for equity focused policy change. The Payne 

Center believes that the IDR proposal currently on the 

table fails to address the extent to which the student 

loan crisis perpetuates economic hardship and increases 

the racial wealth gap. We are disappointed with the 

relatively minor scale of the changes proposed. We urge 

the Department to take bolder action. First, the 

Department must align payment affordability with the 

dramatic increases in housing, health care and other 

essentials in recent years. The plan must protect income 

below at least 300 percent of the federal poverty line. 
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The current proposal does not show a realistic 

understanding of what the average American needs today 

simply to survive. Second, the Department is not 

adequately addressing the catastrophic problem of 

ballooning loan balances due to negative amortization. 

By not subsidizing unpaid interest for all borrowers, 

this IDR plan remains a debt trap. There are so many 

reasons negative amortization is devastating for 

borrowers from the impacts on one's credit to the mental 

health burdens and the complicated calculus one must 

make to not pay down a loan and risk being denied 

forgiveness later. Finally, I must address the exclusion 

of Parent Plus and Graduate Plus loans from this plan. 

Students and families of color are disproportionately 

likely to need to rely on these types of loans. Because 

of the racial wealth gap, more parents of color borrow 

to send their children to college and due to labor 

market discrimination, workers of color pursue graduate 

degrees to even achieve just pay parity with college 

educated white workers. The Department has claimed that 

it wants to focus on undergraduate degrees because they 

function as a pathway towards the middle class. However, 

parent and graduate borrowers of color take on Plus 

loans for this very end. On Tuesday, negotiator Marjorie 

Dorime-Williams made the acute observation that 
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including these Parent and Graduate Plus borrowers would 

not necessarily reduce the benefits to undergraduate 

borrowers, it would only extend them to more people. 

Furthermore, including these loans would in fact 

streamline IDR options by creating a clear best option 

for all borrowers. Plus loans are the highest balance, 

fastest growing, and likely most unsustainable category 

of student loan debt. If the federal government is not 

willing or able to share in the burden of a problem that 

it has helped to create, perhaps Congress should 

reconsider how these education needs are being met. The 

Department must use the tools within its power to help 

address the student loan crisis, including by creating a 

new IDR plan that is substantively more generous than 

the current one proposed. Thank you.

MS. JEFFRIES: Thank you, Ms. 

Partridge. Brady, who is next, please?

MR. ROBERTS: I just admitted 

Professor Christina Alayan, who is the associate dean 

for library and technology and an associate professor at 

the Law School for the University of Maryland.

MS. JEFFRIES: Good afternoon, 

Professor Alayan. Thank you for joining us this 

afternoon. You will have three minutes for your public 

comment and that will start whenever you're ready to 
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begin.

MS. ALAYAN: Thank you. I'm the proud 

daughter of immigrants, one of whom qualified for asylum 

as a refugee. My story could be characterized as a 

quintessential American dream, including last month when 

my student loan was forgiven. But it isn't. I've 

survived the PSLF quagmire only because of luck, the 

tenacity I've inherited from my remarkable parents, 

unearned privilege, and my legal training. It doesn't 

capture the dream denied. Countless families aren't 

getting married, aren't having kids, aren't saving 

money, aren't buying homes because the albatross of 

student loans is all encompassing. During the pandemic, 

millions of borrowers felt a temporary reprieve for the 

first time. It was exhilarating, transformative and 

heartbreaking. I've been watching the work of this 

committee. I'm not envious of the task before you, and 

I'm deeply grateful for your commitment to this crisis. 

Nevertheless, I'm disappointed at the arbitrary lines 

being drawn that are excluding desperate families. I say 

families because while the decisions made here apply to 

borrowers, they have a direct impact on families and 

communities across generations. Before I jump into my 

urgent recommendations, let me note the vast majority of 

graduate borrowers are not high income earners. Graduate 
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degrees are required for public defenders, social 

workers and librarians. My field requires two graduate 

degrees. The financial stability I have secured is the 

exception and not the rule. This is not a repayment 

issue. Students take on debt approved by the federal 

government and attend institutions whose costs 

skyrocket, while salaries, when adjusted for inflation 

have remained static at best. Marginalized communities 

opt into this oppressive system in an attempt to capture 

the elusive promise of middle class life. To hold them 

responsible for a system they did not create and that we 

all know is designed to profit from them with no regard 

for the harm inflicted is abhorrent. Borrowers have no 

faith in programs like PSLF. It is a nightmare to 

navigate. All they see are denials over 90 percent as 

their balances balloon because payments don't ever cover 

the interest or don't even cover the interest. It is 

terrifying. You should aim for easy, broadly applicable 

wins that require little to no intervention from 

borrowers. That said, here's what I think should be 

done. All periods of forbearance should count as 

payments. Interest should be forgiven for any payment 

that is less than the interest or freeze interest for 

anyone in an IDR plan. To be under inclusive is far more 

harmful than being over inclusive. For example, benefits 
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to undergrad borrowers should not be denied graduate 

borrowers. Spousal income should never be factored into 

payments. Working for a qualifying employer under PSLF 

for 10 years and not payments should determine 

forgiveness. Daycare and COLA should be factored into 

discretionary income calculations. Expand the definition 

of qualifying employer for the PSLF program from 

501(c)(3) to include all essential workers, such as food 

service and health care. Interests should not be 

capitalized if borrowers have to move to a different 

plan. Extend the payment suspension Until this is sorted 

out, you can transform the lives of all student 

borrowers. The status quo is financially and 

psychologically crippling. There is consensus the 

Department is the holdout. I hope you're listening 

because we are watching and voting. Thank you and a 

special thank you to Bethany, Daniel, David, Jeri, Joe, 

Josh, Marjorie, Michaela, and Persis. I've really been 

watching and really appreciate all your advocacy. Thank 

you so much.

MS. JEFFRIES: Thank you, Professor. 

Have a great night. Brady.

MR. ROBERTS: Cindy, I just admitted 

Kelly Messina, who was here representing themselves.

MS. JEFFRIES: Hello. She's 
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connecting. Hello, Ms. Messina, can you hear me?

MS. MESSINA: Hi, I can.

MS. JEFFRIES: Okay, wonderful. You 

will have three minutes for your public comment and that 

will start whenever you begin speaking.

MS. MESSINA: My name is Kelly 

Messina. I'm a public servant on track for PSLF and a 

moderator for a large PSLF Facebook group. I've 

previously spoken about more wide scale change, but 

today I will highlight five more immediately relevant 

points. Number one, all borrowers must have the option 

to make a qualifying payment in February 2022. Borrowers 

with early February due dates will not allow Fed/Loan

its 14 days to generate a bill creating yet another nobill month that does not count as qualifying. Every 

borrower must have the option to be billed for February, 

regardless of service or administrator procedures. 

Number two, any months it takes to transfer to the new 

PSLF servicer in the next 12 months must count as 

qualifying months without forced forbearances. Every nobill month, every annual forbearance while servicers 

recalculate IDRs, the upcoming servicer transfers, they 

all delay our forgiveness by one month each time and 

require longer service than 10 years. Ensure February 

2022 and the upcoming servicer transfers don't delay our 
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forgiveness further. Number three, regarding the 

proposed allowance of retroactive PSLF qualifying 

payments for periods of forbearance and deferment, 

consider two additional points; number one, allowing the 

same option for the six month grace period, number two, 

adding this provision to the waiver not just negotiated 

regulation change. I, for one, was never informed that 

consolidating immediately after graduation would have 

allowed those six months of grace to count for PSLF, a 

time my IDR payment was zero dollars. During all of 

these months in question, we completed our end of the 

deal, the service, and we are willing to pay you 

retroactively. So please don't let red tape keep this 

time from counting. As a stopgap to regulation change, I 

propose that you add to the waiver to make all periods 

of forbearance, deferment and grace prior to October 31, 

2022 qualifying, provided that employer employment 

criteria was met at the time. Number four, written 

guidance from the Department regarding consolidation of 

loans on different timelines being given the higher 

count was not provided to borrowers for many weeks after 

the waiver announcement, leading to inequitable 

forgiveness. Countless borrowers had already

consolidated by that point. Borrowers who did not 

include their newer Direct Loans, warned by servicers 
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not to, have now only seen partial forgiveness, while 

other borrowers who ignored the warnings and included 

all of their loans anyway received total forgiveness. 

Still, others who waited for formal guidance before 

consolidating their loans forgiven before they have the 

chance to consolidate with newer loans and missed total 

forgiveness. Number five, and finally, if and when any 

forgiveness is amount is granted by the Biden 

administration, such as $10,000, I ask that the 

Department allow this to be a lump sum payment that 

satisfies future monthly payments until it is gone. For 

any borrower with higher debt than that, forgiving a 

one-time amount will not ease monthly burden. Please 

allow any Executive Order of forgiveness to offset 

future monthly payments. Thank you.

MS. JEFFRIES: Thank you, Ms. Messina. 

Have a great night.

MS. MESSINA: You too.

MS. JEFFRIES: Brady. Brady, who is 

next?

MR. ROBERTS: Cindy, I just admitted 

David Apperson, who is a veteran representing 

themselves.

MS. JEFFRIES: Okay, thank you, Mr. 

Apperson. Can you hear me?
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MR. ROBERTS: To me, it looks like 

he's in the meeting, but he's still connecting to audio 

and video. Do you want me to admit the next speaker? 

MS. JEFFRIES: Yes, if you would, 

please. 

MR. ROBERTS: I'll message him. I'm 

admitting Corina Niner, who is representing themselves.

MS. JEFFRIES: Good afternoon, Ms. 

Niner, how are you? And welcome to public comment.

MS. NINER: Good, thank you. How are 

you?

MS. JEFFRIES: Good. You will have 

three minutes for your comment and that will start 

whenever you're ready to begin.

MS. NINER: Good afternoon and thank 

you for the opportunity to speak. My name is Corina 

Niner. I'm a federal employee, a PSLF hopeful and a 

return to Peace Corps volunteer. I served the United 

States for 27 months in the Peace Corps from 2011 to 

2013 in the Republic of Azerbaijan. I helped 

impoverished women artisans, including those from 

persecuted minority groups, to learn basic business 

skills to help support their families, all while living 

under poverty level conditions myself equal to those of

my community counterparts, and I am proud to have served 
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my country. Prior to my Peace Corps service, I obtained 

a bachelor's degree, a master's in international 

relations and a master's of business administration, 

incurring extensive federal student loans. During my 

time as a Peace Corps volunteer, I deferred my student 

loans at the instructions of the Department of Education 

and my federal student loan providers. I was not aware 

of the PSLF program until I returned from service and 

immediately started my federal career in 2014, at which 

point I applied immediately for the program. I have now 

given almost eight additional years to public service as 

a federal employee, and had I known that my time in the 

Peace Corps could have counted towards my 120 payments 

for PSLF, I would have made sure that I was enrolled in 

an Income Based Repayment Plan instead of deferment. But 

I did not know. With the announcement of the PSLF waiver 

on October 6th and the inclusion of retroactive military 

deferments as part of credible service for PSLF, I was 

momentarily overjoyed that my 10 years would be realized 

and that I would be eligible for forgiveness. I thought 

for sure that if the same deferment status for active 

duty military was being counted, then Peace Corps 

service would be counted. I was devastated to find out 

that this was not the case, that it seemed that Peace 

Corps volunteer service was discussed and then 
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intentionally left out of the waiver. The PSLF waiver 

aims to rectify the gross mismanagement of the PSLF 

program since its inception in 2007,but it has missed 

its mark with this oversight. I ask for myself, my 

family and the thousands of other Peace Corps volunteers 

who have served the United States, that you include 

student loans that were in deferment and or forbearance 

status during Peace Corps service as retroactive 

credible time towards PSLF under the current waiver. We 

should not have to wait additional years for relief for 

time we've already served. I also ask that you please 

make changes to future regulations to ensure that the 

PSLF program follows through on its promises and 

intentions. Like so many others, I've dedicated my 

professional life to the public service and forgiveness 

for my time would be life changing for my family and for 

my child's future. We have held up our end of the 

bargain and we ask that you hold up yours. I thank you 

for your time.

MS. JEFFRIES: Thank you, Ms. Niner.

MS. NINER: Thank you.

MS. JEFFRIES: Alright. So, Mr. 

Apperson, I see you have joined us. If you could unmute 

your microphone. Welcome. Welcome. You will have three 

minutes for your public comment so you can begin 
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whenever you're ready.

MR. APPERSON: Thank you and good 

afternoon. My name is David Apperson and I'm a former 

firefighter, law enforcement officer, and U.S. Army 

veteran from Mendel, Texas. Today, as our nation honors 

the service of Bob Dole, who the New York Times calls a 

linchpin in the passing of the Americans with 

Disabilities Act, I hope this committee can build on the 

work he started many years ago to help veterans and 

other disabled individuals. At 17 years of age, I 

enlisted to serve on the Korean DMZ because I hoped the 

G.I. Bill would pay my way through college. After 

leaving the Army, I went to the Computer Career 

Institute and Oregon Polytechnic. I assumed my GI Bill 

would cover everything, so I was surprised to later 

learn that some of the financial aid documents I signed 

were actually student loans. I got a job in computer 

technology at first detailing heating and plumbing 

systems using AutoCAD and later worked with internet 

design protocols and gateways. However, injuries from my 

military service began to catch up with me. And in 

August of 2003, I woke up, couldn't move my arm, and 

soon thereafter, the left side of my face caved in. My 

head hurt so bad I couldn't even recognize those I 

served with. By 2005, I couldn't even work, but I didn't 
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let my disability stop me from giving back to others. In 

2009, I founded Vets Helping Vets, which helps build 

community awareness among military and veteran families 

throughout the nation and around the world. I was 

honored by Grapevine, Texas VFW Post 10454 in December 

of 13 for completing 10,000 hours of community service. 

However, my disabilities got worse. By 2015, I was 

approved for Social Security TPD discharge by loans, I 

also received 100 percent service connected disability 

rating in 2020 and in 2021 an individual employability 

rating for the VA, dating back to 2009, which would have 

automatically discharged my loans. In 2015, I was 

heavily medicated with morphine, which made it difficult 

for me to complete basic tasks, and I was counting on 

the Department of Education, the Social Security 

Administration, and the VA to work together to discharge 

my loans. There was a problem when I was finalizing a 

home loan in November, the mortgage underwriter said I 

had over $10,000 of student student loan default debt 

and if I didn't get it discharged, I would lose the home 

and could possibly lose my earnest this money. I found 

out that (inaudible) had sent a letter. The end result 

is I believe that new regulations should improve 

information between, shared between agencies, so it's 

not up to disabled veterans like myself to navigate the 
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bureaucracy of several federal agencies to receive a 

student loan discharge and the disabled veterans deserve 

and desperately need. Thank you.

MS. JEFFRIES: Thank you, Mr. 

Apperson, and thank you for your service. Brady, who is 

next?

MR. ROBERTS: Cindy, I just admitted 

William Gawthrop, who's representing themselves.

MS. JEFFRIES: Okay, thank you. Mr. 

Gawthrop, can you hear me? (Inaudible). Mr. Gawthrop?

MR. GAWTHROP: Yes, I can hear you.

MS. JEFFRIES: Okay, I don't know if 

you have video capability, but feel free to turn it on 

if you're comfortable. There you are. Welcome. Thanks 

for joining us. You will have three minutes for your 

public comment this afternoon and that will start 

whenever you're ready to begin.

MR. GAWTHROP: I'm ready to begin now. 

Thank you for allowing me to talk. The purpose of this 

comment is to request your assistance in eliminating an 

injustice and undue social and financial burden on the 

spouses and families of student loan recipients. 

Background: Student loans compute repayment using 

factors extending beyond the borrower. The extended 

factor is the borrower's spouse who did not cosign the 
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loan, and sometimes they're not going to enter into this 

financial encumbrance. Repayment factor comes in the 

form that using the married filing jointly, tax returns 

to calculate repayment. Repayment should be calculated 

on the borrower's income, not the income of 

nonborrowers. Repayment of the loan is the 

responsibility of the borrower. Nonborrowers should not 

be responsible for repayment. Calculating repayment 

using the nonborrower's income, married filing jointly, 

dramatically increases the repayment amount beyond the 

borrower's affordability. It financially penalizes the 

nonborrowing spouse for being married to the student. It 

creates an undue financial hardship on the nonborrower 

and it disincentivizes some marriages in otherwise 

already stressed, economic circumstances. 

Recommendation: Amend the law or change the rule to 

restricting the student loan repayment calculations just 

to the borrower's adjusted income. The benefits are 

three. It dramatically lessens the financial stress on 

vulnerable families. This removes a penalty from the 

spouse of the student, and it relieves the political 

pressures calling for the carte blanche elimination of 

the student loan. It creates a win-win-win situation for 

the student, the government and the students' families. 

Finally, if you have the opportunity, ask a staff member 
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to go on Facebook and look at the various student 

repayment sites and monitor the tone and the tenor and 

the student's comments and the note of desperation that 

some of them exhibit in their repayment dilemmas. Thank 

you very much. That concludes my briefing, thank you.

MS. JEFFRIES: Okay, thank you very 

much, Mr. Gawthrop. Appreciate it. Brady, do we have 

another one?

MR. ROBERTS: We do. Our final speaker 

today, I just admitted, is what Juaquin Brown.

MS. JEFFRIES: Okay, thank you. Mr. 

Brown, can you hear us? I know you're connecting to 

audio. See, there we go. Still waiting on the audio. 

Yes, there you go. Welcome, Mr. Brown. You will have 

three minutes for your public comment and you can begin 

now.

MR. BROWN: Thank you. Good afternoon, 

everyone. Some of you. Yes, can you hear me?

MS. JEFFRIES: Yes.

MR. BROWN: Okay, perfect. Good 

afternoon. Thanks for the opportunity to speak here. I 

see some of some familiar faces. Daniel, Ms. Barry, I 

think Kayla. Yes.

MS. JEFFRIES: Mr. Brown, your audio 

is cutting in and out. Okay. (Inaudible) now?
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MR. BROWN: Yes, I'm sorry, I'm having 

an echo on my side, but essentially yes.

MS. JEFFRIES: Do you have the live 

stream still on?

MR. BROWN: I think I do. Yes.

MS. JEFFRIES: Okay. You need to 

either turn that off. Okay. 

MR. BROWN: Okay, there we go. 

Alright. I'm sorry about that. Okay. Good afternoon. So 

I am the former ITT tech student. And so some of those 

individuals that I mentioned during my echo session 

there kind of heard my spiel. But basically on Monday, 

December 13th, I will have reached five years for 

Borrower Defense of repayment. I have still not heard an 

answer. Today makes 1,822 days. A lot of times I just 

want to be in the background. I don't want to be seen or 

heard from, but I would like to be acknowledged. And so 

I've reached out to the Department of Education. One 

thing I'm not going to get into all of the policy stuff 

because I've been listening all week and trying to

manage to work from home. But essentially in this 

process. To hold hands along the way, somebody from the 

Borrower Defense of repayment process need to walk hand 

in hand with the student to keep them abreast of what 

the situation is. I have two degrees from a school that 
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I can't put on my resume. I don't know how hard that is 

for for anybody here to swallow, but for me, that's 

hard. I also went to a state school that's been around 

since 1891, so I have three degrees. But if I sent you 

my resume today, you will only see one. I sent this to 

the Department of Education, Secretary Cardona as well. 

I sent that to him back in April. I just want somebody 

to acknowledge the fact that I'm I've been in this fight 

for five years and my answer is always pending. My 

school back on August 26th of this year, the Department 

of Education Secretary announced that former students in 

the Borrower's Defense case or the ITT case, we have a 

close discharge loan that goes back 13 calendar years. 

In that time, I was a student, okay? To this day, I 

haven't received a letter, I haven't received a phone 

call, I haven't received an email. Matter of fact, if I 

go to my online Department education site right now to 

look at my claim because I followed it by mail, it is 

not there. I work and manage in health care. I manage 

people's legal medical record. I do that electronically. 

Most people now can go to the doctor and get all of 

their records on their phone. I can't even view the 

document. Although, if you see behind me here, I have 

about three computers of documentation behind me, of all 

of my Borrower Defense claims. Okay. I just want 
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somebody to acknowledge this and there are students out 

there who are willing, myself included, who will be glad 

to help in this process. One thing is I should be able 

to call the phone number and somebody provide me some 

type of status update. Everybody here today is a 

consumer. I don't know how many people will sit here and 

wait 1,822 days for an answer.

MS. JEFFRIES: Mr. Brown, I'm sorry, 

but your time is up. We do appreciate it.

MR. BROWN: Thank you. Merry 

Christmas.

MS. JEFFRIES: Thank you. Thank you. 

Alright. That concludes session three day four. We will 

see you all in the morning except for those who are 

going to stay after in the working group, I think we're 

good for today. Thank you all.
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Appendix

Department of Education

Office of Postsecondary Education

Zoom Chat Transcript

Affordability and Student Loans Committee

Session 3, Day 4, Afternoon, December 9, 2021

DISCLAIMER:

Note: The following is the output of transcribing from a 

recording. Although the transcription is largely accurate; 

in some cases, it is incomplete or inaccurate due to 

inaudible passages or transcription errors. It is posted as 

an aid to understanding the proceedings at the meeting, but 

should not be treated as an authoritative record.

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

 Pup!

From Suzanne Martindale (A) state regulators to 

Everyone:

 +1 to pets on zoom!

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

 +1

From Jessica Barry, Proprietary (P) to Everyone:

I am back at the table for proprietary 

schools.

From David (P) - State hi ed agencies to Everyone:

 Yes, that is what I remember too

From Suzanne Martindale (A) state regulators to 

Everyone:
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+1 persis, more complexity will leas to more 

servicing errors and will undercut intent to expand 

access to relief

From Suzanne Martindale (A) state regulators to 

Everyone:

 *lead

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

josh will join the table for the discussion 

on BD

From Justin (P) Servicemembers and Veterans to Everyone:

 +1 to Persis's and John's final IDR comments

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

Everyone:

Brady - is there a feed problem for viewers? 

I got a note that the feed stopped

From Daniel (P) - Fin Aid Admin (he/his) to Everyone:

 Yes, live video feed is down...

From Daniel (P) - Fin Aid Admin (he/his) to Everyone:

 According to several folks...

From Kayla, FMCS Facilitator to Everyone:

 Working on it.

From Heather (P) - Accrediting Agencies to Everyone:

Michale, accrediting agencies, is going to 

take my place at the table.

From Justin (P) Servicemembers and Veterans to Everyone:

+1 Josh on support for inclusion of legal aid 

organizations and re state law standard
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From Jeri (P) Student Borrowers (she her, they) to 

Everyone:

 +1 Josh

From Misty (P) Priv. Non-Profit to Everyone:

 Suggested Strikes:

 685.405(b)(1) The notification in 

subsection (a) of this section waives any limitation 

period by which the Secretary may recover from the 

institution under § 685.409.

685.407(f) The Secretary may reopen a 

borrower defense application that was partially or 

fully denied at any time to consider evidence that was 

not considered in making the previous decision. If a 

borrower defense application is reopened by the 

Secretary, the Secretary follows the procedures in §§ 

685.402(d)(2) or 685.403(d) for granting forbearance 

and for §§ 685.402(d)(3) or 685.403(e) for defaulted 

loans, as applicable.

685.409(c)(2) The limitations period 

described in paragraph (c)(1) of this section shall 

not apply if the Department official notifies the 

school of the borrower’s claim in accordance with § 

685.405(b) prior to the end of the limitations period.

From Misty (P) Priv. Non-Profit to Everyone:

My last chat was kind of confusing the three 

sections I would like to see striked which waive the 

limitations period are:

 685.405(b)(1)

 685.407(f)

 685.409(c)(2)

From Suzanne Martindale (A) state regulators to 
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Everyone:

+1 josh, the processes are separate for a 

reason

From Jen(she/ella): (A) Student Borrowers to Everyone:

 + 1 Michaela

From Jessica Barry, Proprietary (P) to Everyone:

 I just heard that the feed cut off

From Brady FMCS Facilitator to Everyone:

 I am working with tech- will keep you posted

From Michaela [P] Ind Students to Everyone:

https://iwpr.org/media/press-releases/singlestudent-parents-have-higher-student-debt-burdenespecially-at-for-profit-colleges/

From Michaela [P] Ind Students to Everyone:

https://www.aspeninstitute.org/blogposts/worse-off-than-when-they-enrolled-theconsequence-of-for-profit-colleges-for-people-ofcolor/

From David (P) - State hi ed agencies to Everyone:

 +1 Joe

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

Everyone:

 +1 Michaela

From Joe (P) State AGs to Everyone:

+1 Michaela on costs of adjudicating borrower 

by borrower

From David (P) - State hi ed agencies to Everyone:
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 +1 Michaela

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

Everyone:

In addition, research and evidence 

consistently demonstrate that the borrowers who would 

be most impacted by this are marginalized borrowers 

(i.e., women, students of color, low-income) who 

attend for-profit institutions. This proposal may help 

clarify language and expectations for all institutions 

going forward so we have less of these claims in the 

future.

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

Hello, I'll be subbing back in for the 

Disability seat.

From Daniel (P) - Fin Aid Admin (he/his) to Everyone:

 Welcome back Bethany!

From John S. Whitelaw, A-Disabilty (he/his) to Everyone:

 Dropping off for Bethany to come to the table

From Daniel (P) - Fin Aid Admin (he/his) to Everyone:

Suggestion: "waives the expiration of any 

limitation..."

From Jen(she/ella): (A) Student Borrowers to Everyone:

 +1 Marjorie

From Todd Davis - ED OGC to Everyone:

Josh - on the 3rd party definition, would 

your suggestion be "a nonprofit legal assistance 

organization that provides legal assistance with 

respect to civil matters to low-income individuals 

without a fee" ?
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From Justin (P) Servicemembers and Veterans to Everyone:

 Emily is taking the table.

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

Todd — Yes. Just strike (A) and have (B) be 

the definition

From Todd Davis - ED OGC to Everyone:

 thanks for clarifying

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

Everyone:

 Jen will be coming in for Jeri

From Joe (P) State AGs to Everyone:

 +1 Josh on interest accrual

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

Everyone:

 +1 Josh, interest

From David (P) - State hi ed agencies to Everyone:

 +1 on interest accrual

From Michaela [P] Ind Students to Everyone:

 +1