Negotiated Rulemaking - 12/06/21

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 DEPARTMENT OF EDUCATION

OFFICE OF POSTSECONDARY EDUCATION

AFFORDABILITY AND STUDENT LOANS COMMITTEE 

NEGOTIATED RULEMAKING SESSION 3, DAY 1, AFTERNOON

December 6, 2021

On the 6th 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: Good afternoon and 

welcome back, I hope you all had a wonderful lunch 

break. And I am Cindy Jeffries, I will be your 

facilitator this afternoon. With that, I want to make 

note that David Tandberg is rejoining the table for the 

state agencies. And my notes showed that the order that 

we left off in picking back up closed school discharge 

issue, the order that I had speaker was when we broke 

was Heather and then Joe. And then I see Josh has his 

hand up, so Heather.

DR. PERFETTI: Great, thank you, and 

welcome back from lunch, everyone. So I just wanted to 

also reiterate what Daniel I believe kicked off some of 

the conversation with relating to a definition of closed 

school. And I know that that has been an important theme 

over the multiple sessions. But I also want to thank 

Jennifer, who provided us with a school closure of 

branch campuses and additional locations chart, which 

the Department uses to reflect current procedures 

relating to closed schools, and it clarifies what is 

considered a closed school or location and what would 

not be considered a closed school and location. I think 

that is quite helpful at getting at some of the areas 

where we were seeking clarification. And I know Jennifer 
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talked with us about the ability to make that more 

prominent and more widely shared to assist with some of 

the nuanced situations that are surfacing with 

institutions to best determine what is considered a 

closure under closed school discharge. So I did want to 

acknowledge that document, and I know we were inquiring 

as to whether that was shared broadly with the full 

committee, and I would ask that we distribute that 

document if it's not been distributed yet. I also want 

to reflect a little bit on Joe's comments about the 180 

days because I know that was a concern of the group as 

well. If the goal is to lessen confusion for students 

and the 180 days is a critical point in time from the 

closure date, because the way the closure date is framed 

as when most programs cease or when educational 

instruction for most students ceases, I think it would 

be difficult for students to know when that 180 days has 

been defined. And so I would just ask that we think more 

intentionally about how students understand when that 

180 days is triggered, if the barometer is most programs 

or most students without most being defined in any 

meaningful way. So I did just want to follow up with 

both of those remarks.

MS. JEFFRIES: Thank you, Heather. Joe 

before you speak, I'd like to acknowledge that Christina 
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Tangalakis is now at the table for two-year public 

institutions instead of Robert Ayala. Okay, Joe.

MR. SANDERS: Thanks. Yeah, I'd be 

interested in seeing that chart, I think that would be 

helpful for me as well. I just wanted to briefly push 

back on a couple of the concepts that Jessica had 

mentioned in her last time at the table, particularly 

the idea that all students are now going to on mass 

transfer once there's a closure. I don't think that 

that's the case, for two reasons. One, as this group has 

acknowledged in this context and others, there are a lot 

of problems with transfers and a lot of credits don't 

transfer. Absent in articulation agreement, it's spotty 

even when you're going from regionally accredited to 

regionally accredited. So I don't think you're going to 

see transfers on mass for that reason. In addition,

students, when their closure is announced, they're very 

concerned about the time that they've put into a 

program. And so particularly for students who are in the 

back side of completing a program, they're not going to 

willy nilly walk away if they have the option to not 

have that time taken away from them. So I don't think 

that that that situation where everyone will just 

transfer now is going to come to pass. That's my on 

students and transfers under this proposed regulation.
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MS. JEFFRIES: Thank you, Joe. Josh.

MR. ROVENGER: Thanks. So I'll just 

have a few different sets of comments, I'll start by 

echoing the request for that chart to be made as public 

as possible. I think more transparency is always better 

to the extent that can be circulated. That'd be great. I 

also want to respond to some of industry's talking 

points on this because I want the record to be clear on 

them, and frankly, I feel like I may be reading a 

different statute and regulation because I don't I just 

don't share a lot of the concerns that have been raised 

and don't see how they're actually manifest in this 

proposed language. So start with this idea that it's 

redefining what constitutes a school closure such that a 

school that modifies a number of programs would somehow 

be deemed a close school. I don't, I mean, the language 

is quite clear ceases to provide educational instruction 

in most programs. I don't think we're talking about a 

school that changes one program at a certain time, all 

of a sudden it's going to be subject to closed school 

liability. And moreover, you know, you're talking about 

a school that has three to four programs. Frankly, if 

you're changing the nature of the program or getting rid 

of the program while students are enrolled in them, you 

may you may not have closed school liability. But 
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frankly, I think you may have UDEP or BD liability 

because you're upending settled expectations of the 

program the student is choosing to enroll in. With 

respect to the comparable program requirement, I know 

that the long standing statutory interpretation was 

invoked and I would ask where, where in the statute is 

that requirement? Because I think we talked about in 

session two the language is quite broad and clear on 

closed school discharge, and there is nothing that 

requires that comparable program requirement. It was 

something, in our view, not only read into the statute, 

but incorrectly read into the statute. I also don't see 

on the incentives question how this regulation could 

impact a student, specifically pre 2014, whose school 

closed. Said differently, if we're talking about a 

hypothetical student whose school closed in 2008 while 

they were attending, I don't think including or not 

including the comparable program requirement, is going 

to impact what they choose to do in any way because 

they've already made their decision. I also think to 

echo Joe's point that when we're talking about what a 

future student might do when their school closes, I 

think giving them the full agency over their decisions 

and not forcing them one way or another into programs is 

not only the best outcome for students, but ultimately 
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yields the best outcome more broadly. Finally, on the 

retroactivity question. So if a student, if a school 

closes after 2023, I don't see, I mean, there wouldn't 

be a retroactivity concern. And then if a school has 

already closed, I don't see any language in this 

regulation that suggests that the Department is going to 

try and recover monies from a essentially a judgment 

proof dead school as to kind of yield retroactivity 

problems.

MS. JEFFRIES: Thank you, Josh. Josh, 

do you have your hand back up?

MR. ROVENGER: I do. So I'm going to 

move on to some technical fixes that I'd like to point 

out in the current regulation. So in the direct loan 

section, in subsection D, I or D 1, there's a cross 

reference to paragraph H but I think it actually should 

be a cross reference the subsection C for auto 

discharges because I think H is now exceptional 

circumstances. And then another small technical point at 

D 1 little i b, there's a reference to paragraph I, 

which no longer exists, and I think that should be 

should be a cross reference to paragraph H, the 

exceptional circumstances provision. And then the last 

thing I have is on the definition of program and 

stacking, I just want to make sure that this covers 
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everything that it needs to. So the example that we 

provided was a student who wanted to attend a bachelor's 

program was forced into an associate's program because 

they were told it was necessary for the bachelor's 

program. And I just I guess I want to confirm that 3 A, 

A in the definition of program is what's being used to 

capture that and then but also be interested in hearing 

from the Department what they're intending to capture 

with subsection B in the in that provision.

MS. JEFFRIES: Okay. Thank you, Josh. 

Jennifer, did you want to make those technical changes 

live or do you have them?

MS. HONG: Thanks for that. I just 

want to cross, I just I just want to take them back, I 

just want to look at them, the technical changes.

MS. JEFFRIES: Okay. Alright, great. 

Daniel, I see your hand is up.

MR. BARKOWITZ: Thanks. I just want to 

respond to Josh. So first of all, I think I think this 

will be helpful by having the chart out. I think, Josh, 

the concern, you raised a question I want to make sure I 

answer the question. The question was asked was the 

concern of financial obligation for a closed school. And 

going into this what I expressed in week one is my 

concern that the way that definite definition is 
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written, the school could be considered closed even if 

it still exists and it's still offering services. So in 

that situation, the school would have a possibly 

significant financial liability. So that's why, in a 

sense, the presence of the chart defining when and under 

what conditions the Department considers it a closed 

school is essential from my point of view, because there 

is institutional liability. If the pendulum swings the 

other way, which is any closure of any program at any 

campus by definition relates to the entire institution 

as a closed institution. This goes to the report that 

Raj provided earlier where we saw 14,000 closed schools. 

You know, this is a much larger issue than simply a 

school closing. We have some some audio coming through.

MS. JEFFRIES: Yeah, somebody needs to 

mute. Can you look at that, Brady?

MR. BARKOWITZ: Thank you. So, so 

Josh, this is why I, you know, I'm fervent for the for 

the need to promulgate as Heather has indicated and 

others, a definitional expansion of what is considered 

closed so that institutions don't take on liability in 

those situations where in fact the school isn't closed, 

but maybe a program is closing. Again, I fully support 

that, students who signed up for that program have 

legitimate complaints to be aired and legitimate 
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remedies to offer or to be offered. But the question is 

around whether that in and of itself constitutes a 

closed school.

MS. HONG: Can I respond real quickly, 

Cindy?

MS. JEFFRIES: Absolutely.

MS. HONG: Yeah. I just, I, first of 

all, I just appreciate the institutional colleagues 

agreement that this table that was distributed to them 

and yes, we can widely distributed that to the to the 

other negotiators provides the clarification that they 

need as some regulatory guidance. And we're happy to 

make that more prominent, perhaps part in the preamble 

or in other guidance to ensure that we have clarity on 

what we mean when we talk about closed schools to 

further interpret what we've already have in the 

regulation. And I believe that that that clarification 

satisfies the concerns of most of the institutional 

colleagues. In terms of the comparable program, we did, 

this was a significant change, we talked a lot about it 

in session two. We landed here because, you know, we 

were convinced that any kind of disruptions, the type of 

disruptions on a closed school introduces to a borrowing 

student by no fault of their own, you know, ought to 

they ought to have the opportunity to have their loans 
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discharged. We're less concerned about, you know, 

borrowers electing that option if they're close to 

finishing their program. We do believe that students 

that are close to finishing and are in a teach out would 

avail themselves of the teach out because they're 

interested in completing their degree. And so we are 

less concerned about that, that issue that was raised by 

Jessica. In terms of retroactivity, we will not be 

assessing liabilities retroactively so the liability is 

applied prospectively, and I don't know if that assuages 

some of your concerns, Jessica. But I'd like to hear 

more about where you're landing on that issue. And also 

in terms of, I think, Joe's question about counting the 

days, if we're discharging without application, the 

number of days kind of becomes less relevant. So we are 

less concerned about that as well. Thank you.

MS. JEFFRIES: Thank you, Jennifer. 

David, I see your hand up.

DR. TANDBERG: Yeah, thank you. To the 

question that Jessica raised, well, first, let me say 

I'm really happy on the whole with the changes that have 

been made by the Department to these regulations. I 

think they represent a significant improvement over what 

was first presented to us and a dramatic improvement 

over existing regulations. So the question of, you know, 
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an institution wrongly being identified as closed, 

right. So that, they make some innovative changes to 

their programs, which would somehow make them meet the 

threshold for being defined as a closure. First, I don't 

think that's too likely. I think it would be extremely 

rare if it happened at all. But wouldn't there be, I 

believe, a process for the institution to wave their 

hand at the Department say no, we're actually not 

closed, we're still operating, we're just operating in a 

new form that students are fine. I mean, some sort of a 

appeal process for the institution to argue that in 

fact, they're not closed. I think that exists, correct? 

I guess that would be a question for Jennifer.

MS. JEFFRIES: Thank you, David. Joe, 

I see your hand up.

DR. TANDBERG: So real quick, I didn't 

know, Jennifer, is that a question you're capable of 

answering now?

MS. HONG: Let me get back to you, 

David. I may think in general, the general principles, 

right? Like where, yeah.

DR. TANDBERG: Okay, thank you.

MS. JEFFRIES: Okay. Thank you, David, 

Joe.

MR. SANDERS: Yeah. Just to respond 
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quickly to Jennifer's point on my comment, I agree that 

discharging of that application is great. I think that 

that's a real positive. It does not address my issue, 

which is that if the closure is announced more than 180 

days from the closure date, students are going to act 

then, they're not going to wait around and think about 

it, well, should I continue to go here? Should I not? 

They're going to drop. If their decision is to drop, 

they're going to do it, then because they don't want to 

spend any more money and take on any more loans. And 

once they've dropped, then they're outside the 180 day 

window and somebody's got to come in and make the case 

either internal within the Department or external, 

somebody outside has to make the case, this is an 

exceptional circumstance, we need to move the date back. 

And so automatic discharge doesn't get at the problem of 

when the closure is announced and students taking action 

right then. And, you Know, to Heather's point, you know, 

I don't even know when a closure is announced, I don't 

even know that you can backdate and figure out in that 

moment when the closed school date is going to be. So I 

think, if there's something wrong with my proposal that 

makes it not workable that when the closure is 

announced, that's when that kicks in. Please let me 

know. But I think that that would create certainty for 
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the students that's not there under the current 

proposal.

MS. JEFFRIES: Thank you, Joe. 

Alright. Justin, you put your hand down, you don't, you 

changed your mind?

MR. HAUSCHILD: Well, so I would just 

like to circle back to a point, I think Daniel raised 

about the language in the provisions that deal with 

discharge without application. We're also interested in 

that I should have plus one that earlier, I didn't, so I 

want to reiterate that. I'd also just be interested, 

broadly, the Department sounds like we'll be coming back 

to us with a few details. They should we, I mean, I 

would imagine we'd expect that information today or how 

are we are we looking at those responses prior to voting 

on on consensus here?

MS. HONG: Sorry Justin, on what 

issues?

MR. HAUSCHILD: So I guess there's 

been there's been a few items folks have raised, whether 

they be technical corrections. I think Daniel's point 

was another great example, just saying that the 

Department will take a look at that and get back to us. 

I'm just curious if we should be expecting that before 

before we might vote on consensus today?
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MR. BARKOWITZ: Jennifer as a reminder 

this is the may versus shall language Secretary under 

the conforming language on Perkins and FFEL.

MS. HONG: Got it. Yeah, we can, we 

will get you that prior to voting, if that's a deal 

breaker.

MS. JEFFRIES: Okay. Jessica.

MS. BARRY: Yeah, there was a question 

that came up over lunch. I just want to make sure I'm 

understanding correctly. So to give you a scenario, so 

if a borrower attended a school that closed before July 

1 2023 and applies for closed school discharge after 

July 1 2023, and they were not part of a teach out 

program, but they transferred to a comparable program, 

another institution, and they either completed that 

program or they're still enrolled. Are they eligible for 

closed school discharge? I'm just a little bit confused 

about what happens before that July 2023 date.

MS. JEFFRIES: Thank you, Jessica. 

That may be something that Jennifer needs to look at and 

get back to you on. So is there anyone else that wants 

to speak on this issue at this point? I think what I'm 

hearing, especially from Justin, the exchange between 

Justin and Jennifer a few minutes ago, is there are a 

number of things that were brought up that the 
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Department needs to have a chance to look into. And I 

believe it was, at least from Justin's perspective, have 

that information prior to taking your consensus check. 

That is up to you. You could take a check now just to 

see where you're at or we can table this and come back 

to it. David.

DR. TANDBERG: I think, not. I don't 

know that we're ready for official consensus vote, but a 

temperature check might be a good idea.

MS. JEFFRIES: Jennifer, did you have 

quickly before, Josh, did you, I didn't mean to block 

Josh off, but oh, Jennifer your hand is down.

MS. HONG: Yeah, no, I just, if I 

could jump in here real quickly. So I guess I guess the 

issues that are outstanding, I just perceive of them as 

minor technical issues in terms of the may and the shall 

and I think there was some minor issues that Josh had 

raised regarding cross reference. And to answer 

Jessica's question, the answer is yes, that in the 

scenario you provided, that borrower would be eligible 

for discharge. We did make a significant change by 

removing the enrollment concept between sessions two and 

three. That's really the issue here. I mean, whether 

whether we say may or shall, those are kind of drafting 

conventions and I'm trying to get a sense of where we 
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are. We we really spent a lot of time in response to 

this committee's concerns overall. I'm understanding 

that the table that we provided addresses the 

institution's concerns that realized Jessica has some 

other outstanding concerns. It seems like we are pretty 

much on board with this proposal. And I guess I was 

prepared to take a consensus check, absent, you know, 

keeping in mind, we will find the best course of action 

for these technical revisions, make sure that the cross 

references are accurate, etc. But I didn't, I don't see 

any other substantive issues as issue definitional 

issues. We talked about that with the institutions. 

We're going to get this regulatory guidance out. Make it 

more prominent. I mean, I don't I don't know what else 

there is here. So I just I'm interested in understanding 

that better.

MS. JEFFRIES: Thank you, Jennifer 

Justin. You're on mute, Justin.

MR. HAUSCHILD: Thanks so much. So I 

should have been clear, and I should have said this in 

advance, but I mean, we're certainly appreciative of 

where we are with this text and appreciate the strides 

the Department's taken with this specific regulatory 

text. I just was more curious than anything in the 

Department's response to Daniel, and I might have missed 
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for this, but I thought there was something along the 

lines, we'll just get back, that specific language might 

have been intentional. And I was just more curious than 

anything because I know the Department has seen fit to 

in a number of other areas and regulatory text that 

we'll look at today, especially in TBD or including TBD, 

which we just looked at, they looked at similar language 

around discharges without applications and saw fit to

make those changes. And it almost appears internally 

inconsistent within this document, which I think is 

something that may be even Daniel not to. So we're just 

more curious than anything certainly appreciative of 

Department's efforts and where things stand in the 

regulatory text. But to the extent that these discharge 

without application provisions are different 

intentionally than some of the things we're seeing 

elsewhere throughout regulatory text today, I'd just be 

curious in learning why that's the case. Thanks.

MS. HONG: And that's a totally fair 

question. You know, my instinct is to say that let's 

change it to shall, it really doesn't make any 

difference. However, I, you know, I can't make that 

decision on my own and my, what you'll notice that there 

are these there are differences between the loans 

programs, so they fundamentally the FFEL language if you 
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looked at it looks very different. For good reason 

because of it's a different program and it's implemented 

differently. However, even the language, it could be 

better conformed and we didn't sometimes that has to do 

with technical changes, like we hadn't made changes in 

the FFEL program. So it's not necessarily that it's 

intentional, but it won't it won't necessarily mirror 

the direct loan language, right. So it might just be 

kind of legacy language, that's kind of how we wrote it 

back then. It gets to what we want the substance of the 

issue, there's a general sense that, you know, if time 

permitting, we're going to we'd like to clean up that 

language and make the technical changes that we want to 

make to make it clearer and more precise. Sometimes when 

we don't have that time, we're going to error on the 

side of what's already existing language and amend it 

accordingly. So that kind of constitutes some of the 

difference you might see, Justin, and that is not 

entirely intentional that some of this language is 

different or the legacy of how it's when it's when it 

was amended, when it was changed. If that helps. But all 

that being said, you know, the may or shall that should 

be easily remedied.

MS. JEFFRIES: Thank you, Jennifer. 

David.
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DR. TANDBERG: So I guess I'm hearing 

the back and forth. I mean, I would like the may shall 

thing resolved, sounds like shall is a distinct 

possibility. I think I'd be prepared for a consensus 

vote now.

MS. JEFFRIES: Thank you, David. 

Heather.

DR. PERFETTI: Thank you. So, I just 

wanted to note that I attempted to place the document 

that was shared with us from the Department into the 

chat, which is the school closure of branch campuses and 

additional locations that you've heard referenced. And 

so if you haven't had an opportunity to see that, I've 

just inserted it there. I did just also want to raise 

and this goes back to, I think a question that Joe 

raised actually is around the 180 days to make sure that 

that's been resolved because that was one of the other 

concerns that I heard repeatedly, including one that I 

had mentioned.

MS. JEFFRIES: Thank you, Heather. 

Alright. Jessica.

MS. BARRY: Sure, I just want to make 

sure that I let everybody know of two other concerns 

that I talked about in other meetings, and there's still 

a concern for me that haven't brought been brought up 
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today and it's under exceptional circumstances. So I 

still think it's an issue that we include when a 

accreditor puts a school on probation or show cause. And 

I've talked about before how they can be on probation or 

show cause for reasons that have nothing to do with the 

school's closure. So I still have an issue with that 

one. I also would like to point out to that if it's a 

state agency finding that that finding material and not 

just a finding because sometime findings are given an 

example before can be that we don't have a faculty 

members college transcript in their files. So I want to 

make sure that it's something material. And then also 

HCM2 a school could be on HCM2 a couple of years before 

their closure, get that resolved, then get off HCM2. So 

I just want to would want to add that they are on HCM2 

at the time of closure. So just a just so everybody 

knows exactly where I am. I've stated the other reasons 

why I have concerns that those things I'm still 

concerned with too.

MS. JEFFRIES: Thank you, Jessica. 

Michaela.

MS. MARTIN: Yes. On that 180 days 

from the announcement, like as much as I really want to 

say that, I agree that it's important because once that 

announcement is made. But like what you would consider 
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an announcement would be really really difficult for us

to put in statutory like language because, for example, 

my school went from we're going from ABA to Calbar, so 

I'm currently a part of a teach out program as they're 

changing that status. And the announcement came in like 

waves, right? Like, like you start hearing about it and 

then like, there was kind of like an informal 

announcement to students that are like all of the one 

(inaudible), have like one study class together. So we 

had like an announcement then they didn't make like the 

formal announcement for a little longer. So I just like 

as much as I I totally agree with you, Joe, that folks 

start jumping ship. I think that that would be really 

difficult, and I hope that it's not like a sticking 

point that we don't pass up an opportunity for some 

like, really improved regulations.

MS. JEFFRIES: Thank you, Michaela.

MS. HONG: Yeah, I again, to 

Michaela's point, this is these are significant changes 

based on what we discussed in session two. And regarding 

your concerns, Jessica, I just, you know, by definition, 

the section you describe these are exceptional 

circumstances, in other words, based on the discretion 

of the Secretary, so it's not a given the Secretary will 

consider each situation on a case by case basis. So 
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that's why that is included in there. So in the case 

where an institution is put on probation for a relevant 

circumstance that a borrower ought to be discharged 

under closed school, the secretary will make that 

determination within the scope of his purview. So just 

add that for your concerns.

MS. JEFFRIES: Michaela is your hand 

back up or? Okay, go ahead.

MS. MARTIN: Yes, sorry. I also meant 

to address Jessica. Sorry. What she was saying about 

having concerns about that discretionary piece. I know 

that sometimes like when it says like up to the 

discretion of somebody else and you don't have that 

clarity, it can feel like really uncomfortable. But I 

also think that institutions have other forms of 

recourse where if you were if the Department attempted 

to, like, hold somebody accountable and they really 

thought that that was wrong, right? There's still the 

whole legal system where students who then now don't 

have a degree and have had their school closed don't 

have that same level of access or resources to go that 

route. And so I also encourage you to not allow students 

who have been wronged by an institution not to have the 

opportunity to have their student loans forgiven because 

somebody else might have to go through a difficult 
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process like we kind of have a balancing system here. 

And I just really would encourage you to not let that 

stop what is really great improvements on regulations.

MS. JEFFRIES: Okay. I'm seeing no 

additional hands, and after carefully listening to the 

conversation, especially the (inaudible), we will go 

ahead and call for a (inaudible) on this. I'd like to 

remind you that if you are a thumbs down, you will be 

asked to articulate your reasons if they are different 

than what you already articulated and you will be asked 

and expected to provide alternative language in it to 

address your concerns for consideration. So with that, 

let's go ahead and please put your thumbs high. I do 

need to call out the thumb positions on this, and so 

bear with me recognizing that sometimes our virtual 

screen moves on us. Alright. So at the end, I will be 

asking if I missed anyone, just to be sure we have a 

complete record. Okay? Alright. So with that, let's go 

ahead and see the thumbs, please. I see Heather is a 

sideways thumb. Josh is thumbs up. David is thumbs up. 

Dr. Marjorie Dorime-Williams is a thumbs up. Justin is a 

thumbs up. Daniel is a sideways thumb. Joe is a sideways 

thumb. Christina is a thumbs up. Jennifer, ED negotiator 

Jennifer, is a thumbs up. Misty thumbs up. Bethany 

thumbs up. Jaye sideways thumb. Jessica Barry thumbs 
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down. Noelia is a thumbs up. Jeri thumbs up. Michaela 

thumbs up. Dixie thumbs up. And Anne Precythe, are you 

weighing in on this?

MS. PRECYTHE: For now, I'll abstain, 

thank you.

MS. JEFFRIES: Okay. Just for the 

record, when a party abstains or is not present at the 

table, that is considered a thumbs up in agreement. So 

we do have one thumbs down. Before I get to you 

Jessica, Josh, you have your hands up, your hand up.

MR. ROVENGER: I can go after Jessica.

MS. JEFFRIES: Okay. Jessica, I need 

you to speak to any additional concerns that you have 

and to present proposals to correct it that would make 

you able to move forward on this.

MS. BARRY: Sure. And I want to be 

clear, I'm not trying to keep students from getting 

discharges that that deserve discharges. I mean, that's 

the last thing that I want to do. I just want this rule 

to be as clear as possible, so schools understand the 

rules. Again, it's not just schools that are closing 

completely, sometimes these schools are still open and 

and have to deal with these with these changes. In our 

caucus, we talked about some of the concerns that I had. 

I'm willing to draft some language to be able to present 
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Negotiated Rulemaking - 12/06/21

to the committee tomorrow, but that's if you're 

interested in seeing it. I know some of my differences 

are pretty philosophical and broad, and I don't want to 

waste your time because I know there are other things 

that we want to get to that need our attention. So I 

guess I would love to hear and maybe from Jennifer what 

you think you know my concerns. Would you like to see 

updated regulatory draft from me or would you rather 

move forward?

MS. HONG: Do you want to, maybe Josh 

go first and then I can respond to Jessica.

MS. JEFFRIES: Okay, sounds good. 

Thank you, Jennifer. Josh.

MR. ROVENGER: Thanks. I was just 

going to say that it seems like there's near universal 

consensus other than industry. I mean, we have broad 

support from four-year public institutions, two-year 

public institutions, student borrowers, AGs, et cetera. 

You know, I would urge, I think I think, you know, to 

Jessica's point, there are just philosophical 

differences, and I would just urge the Department, 

though it is not legally committed to adopting what it 

has proposed to treat it basically more or less as 

consensus and use this language in its MBRM.

DR. TANDBERG: Plus one on that so I 
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Negotiated Rulemaking - 12/06/21

wanted to say it out loud.

MS. JEFFRIES: Thank you. Jennifer, 

did that give you enough time?

MS. HONG: Yeah, I mean, I agree that 

everything that Jessica enumerated seemed broad and 

philosophical nature. We have a policy position and we

stand behind it. If the proposed language is averse to 

that, we wouldn't be able to consider it to the extent 

that they're minor tweaks to the language. We were happy 

to consider it. I don't want to just say no flat out. We 

are here in good faith, but to the extent that, I mean, 

the change that we proposed between two and three is 

rather significant, and we stand by that change. So if 

it's proposing to bring the reenrollment language back, 

I think we had a lot of deliberation on our end to 

arrive where we are today. So again, I leave it up to 

you.

MS. BARRY: Okay. I just wanted to add 

real quick, just thank you for everyone's honesty, and 

thank you, Jen, for that.

MS. JEFFRIES: Alright. So at this 

point, there is the committee does not have full 

consensus on this. We will table this and circle back to 

it as time allows or if time allows or if Jessica you 

submit something that the Department wants to address, 
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Negotiated Rulemaking - 12/06/21

we can certainly take a look at it. But for now, we're 

going to move it to the tail end of the agenda. And if 

there's time we will circle back to it. Okay? Alright. 

So with that, brings us to our next topic, which is, 

here it is, eliminate interest capitalization for nonstatutory capitalization events, issue number three. 

Jennifer are you ready to walk the committee through 

that?

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

we could cue, an interest capitalization language, I 

want to point something off something out on the outset 

and that is the draft we just actually made we just 

noticed something right now that we didn't remedy in the 

draft that we provided to you. When we when we rewrote 

for session three, the language for ICR, we didn't make 

the conforming change to the regulations for interest 

capitalization. So it's really a technical change 

because we've rewritten Section 209 embedded in the 

proposed ICR plan that you have in front of you. So if 

you scroll down, Vanessa, Vanessa's got the actual 

current version, which it's a deletion. It's a deletion 

of everything under 209, which there was a line there 

that wasn't deleted regarding partial financial 

hardship. That's the only thing that has changed and 

that just change right now because we call it the 
29

Negotiated Rulemaking - 12/06/21

technical error on our end. Otherwise, we stand by 

removing capitalization for non-statutory capitalizing 

capitalizing events. We had tentative agreement on this. 

As it stands, I realize we said that we would explore 

capitalization under consolidation. After our 

deliberation, we've just left what we have here. So this 

does not include consolidation. And this is it so I'm 

hoping that this is another consensus victory for us but 

I see Persis's hand raised so I will let her speak.

MS. JEFFRIES: Let me, thank you 

Jennifer for that. Let me just make a couple of notes 

here for the record. Yes, Persis is back in for legal 

aid and Carol is in for proprietary schools. So with 

that, Persis go ahead.

MS. YU: Thank you. And but no but 

Persis is back is needed here. I actually just have a 

clarifying question on the technical change that you 

were just describing. So as I was looking at the 

language before today, it was the issue with the partial 

financial hardship because I think there's a distinction 

between how pay as you earn legal authority for pay as 

you earn and for Income Based Repayment, are you saying 

that there will be no income or there will be no 

interest capitalized when a borrower ceases to have a 

partial financial hardship in both Income Based 
30

Negotiated Rulemaking - 12/06/21

Repayment and pay as you earn? Or is it that this only 

applying to pay as you earn?

MS. JEFFRIES: Thank you, Persis. The 

Department may need a little bit of time to get back to 

you with that. Any other hands? There are go. I am not 

seeing any other discussions, so, with that, we'll go 

ahead and move to consensus and see where we're at. 

Unless Jennifer, if you had a response or anything you 

wanted to say before we move to consensus.

MS. HONG: Does it look that way? I'm 

sorry, so that's just it's just for pay. Persis.

MS. YU: Okay, thank you. I just 

wanted to clarify. But that the intention is that pay as 

you earn will not capitalize when the borrower ceases to 

have a partial financial hardship. Is that correct?

MS. HONG: Correct.

MS. JEFFRIES: Okay. Alright. No other 

hands up at this point, so let's go ahead and move to 

consensus if I could see those thumbs high and clearly, 

I would appreciate it. Okay. Heather is a thumbs up. 

David thumbs up. Marjorie thumbs up. Justin thumbs up. 

Daniel thumbs up. Joe thumbs up. Christina thumbs up. 

Misty thumbs up. Bethany thumbs up. Jaye thumbs up. 

Noelia thumbs up. Jeri thumbs up. Okay, it's looking 

kind of funny on my screen, I'm like, what is that down 
31

Negotiated Rulemaking - 12/06/21

there? Anne, are you abstaining again? And that is 

counted as a yes for consensus. Dixie thumbs up. Persis 

thumbs up. Carol Colvin thumbs up. And Michaela thumbs 

up. And then Jennifer from Department of ED is a thumbs 

up. So you have full consensus on this issue as well. 

Congratulations. Okay. Alright. Let's go ahead and start 

on your next issue, which is false certification 

discharge. Why don't we go ahead and get started on that 

and we, depending on where this goes, we may end up 

taking your afternoon break in there and resuming it. So 

Jennifer are you ready to walk us through that?

MS. HONG: Yes. Thank you, Cindy. So 

for false certification, the only conforming language in 

addition to the direct loan program is FFEL language. 

And this is a good example. Pages 1 through 16 

constitutes a FFEL language, and it's a bit of a bear. 

The language doesn't necessarily mirror the direct loan 

language, the new language that we're proposing we've 

inserted in there. I will jump again to page bottom of 

page 16 for the direct loan language, and we can talk 

about any changes between two and three and begin the 

discussion there. The only minor technical corrections I 

think there was a correction to in the highlighted 

sections to a cross reference. 668.32 E on page 17 

that's carried throughout the regulation on 18 missing 
32

Negotiated Rulemaking - 12/06/21

and on the bottom of page 19. For clarity on page 20, 

we've added the clause relating to the individual to 

ensure that the judicial determination of identity 

theft, if relating to the individual, as well as a 

police report alleging identity theft relating to the 

individual. And that'll take us all the way to the end. 

So these were just technical changes between sessions 

two and three. I know that legal had some questions or 

concerns that they wanted to discuss, and unfortunately 

we weren't able to connect between the sessions, so 

we're happy to hear them and talk about them. If you 

want to do that Josh at the table today, we're happy to 

do that. But that's where we are with (inaudible). I 

know that this is another one that we had tentative 

agreement with in session two.

MR. ROBERTS: You're muted Cindy.

MS. JEFFRIES: I'm sorry about that my 

mouse wasn't cooperating switching screens here for me. 

So thank you. Josh, go ahead.

MR. ROVENGER: Thanks. So I have a 

number of comments and questions. But I think I'm going 

to start with the most important one because when I took 

this back to my constituency, notwithstanding the 

tentative agreement, the last time there was really 

significant concern that the Department didn't include 
33

Negotiated Rulemaking - 12/06/21

the proposed language related to group discharges that 

we submitted or something comparable to it. Essentially, 

we need something in here that provides for an 

opportunity for borrowers to submit a group application 

that the Department then is committed to respond to. You 

know, one is a practical matter. A lot of borrowers 

don't even know about their right to file cert relief, 

and so the group process is particularly important. And 

two, what we've encountered in the past is when we have 

submitted group applications, the Department just hasn't 

responded to it at all. And so we do need some provision 

in here providing us with the right to do so. So that's 

kind of the biggest picture item for us. A few other 

points that I want to flag and I'll come back on because 

I think I'll go over my three minutes. So on 

corroborating evidence, so we understand why so we 

understand from the last session that the Department 

when it comes to ATB issues is not going to require any 

corroborating evidence. And we also understand that it's 

not going to be included in the regulation. I do, I 

think my constituency feels like if it can go in the 

preamble or some other form of guidance, that kind of 

tells us exactly what the what standard the Department 

is going to be employing. I think that would just be 

extremely helpful for us and for our clients. The last 
34

Negotiated Rulemaking - 12/06/21

thing I'll leave right now and then I'll pop back on is 

on the definition of origination. So I think I think we 

have two concerns on this and would urge the Department 

just to take out the definition entirely. The first 

concern is that by pegging it to the common origination 

and disbursement system, I think the Department I feel 

like this regulation is almost setting us up for 

problems in the future if the Department ever changes 

its systems or the process and procedure, because then 

we have this regulatory language that's tied to this one 

specific system that could possibly change in the 

future. And then just more broadly, the definition 

itself recognizes that a school must determine the 

students or parents eligibility for the loan and that 

that happens before the school submits the record to the 

Department's COD (phonetic) system. And if I mean, if 

this entire framework is dealing with the school's 

obligations to certify eligibility, it seems like it's 

at the point that the schools determining the students 

or parents eligibility, that that certification is 

happening. I'll pause there. The second two issues 

really important, but not deal breakers for us. The 

group language is critical.

MS. JEFFRIES: Ok, thank you, Josh. I 

should note you for the record that Josh did come back 
35

Negotiated Rulemaking - 12/06/21

to the table representing legal aid. Jaye.

MS. O'CONNELL: So my question is, is 

technical in nature, so under it would be for both DL 

and FFEL rules. So I'm looking on page 4 under the crime 

of ID theft and part of the change to the evidence. So, 

it you're listing, I think, five different evidence 

options, but there's an “and” at the before the last 

item, and we're wondering if that's really an “or”? So 

that's the first question. And I think the other thing 

we just wanted to bring up, so we under the FFEL 

program, there could have been denials of ID theft 

claims where there was a higher standard of evidence and 

just wanted to raise the concern that one of the 

experiences we've had is with soft fraud or family fraud 

and just the contemplation of if you have a lower 

standard of documentation evidence, if we might see that 

relief companies kind of getting in the mix here to 

encourage this soft kind of fraud. Just an experience we 

had during our tenure as originators. So that's it.

MS. JEFFRIES: Thank you, Jaye.

MS. HONG: I can quickly respond and 

thank you for that second point, will take that into 

consideration. I think the “and” is fine here. It's an 

inclusive list, so you know, it's listing out all 

examples of supporting evidence, so I think the “and” is 
36

Negotiated Rulemaking - 12/06/21

fine. Thank you.

MS. JEFFRIES: Thank you. Josh.

MR. ROVENGER: Thanks. So a few other 

items. So the first thing I know we talked about a 

little bit about this last time the reported not having 

a high school diploma or its equivalent provision. 

Again, I think we have concern about the reported 

language in there. Many borrowers don't know that not 

having that this is related to their eligibility for 

federal student loans at all and so wouldn't have any 

reason to report that they didn't have a high school 

diploma. And what we're concerned about is that the most 

vulnerable borrowers are the ones who are going to be 

denied relief by including that obligation on them. I 

think that is particularly I think that risk is 

particularly significant when compared to any kind of 

countervailing interests that may exist. You know, one, 

it is the school's obligation to certify eligibility. 

And so it's the school's responsibility to make sure 

that the student has a high school diploma. And two, I 

just I struggle to see that taking out the reported 

language would open the door to any potential fraud or 

misconduct as to outweigh the harm that could that will 

be caused to students by this requirement. So that's one 

issue. The second issue relates to disqualifying status. 
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Negotiated Rulemaking - 12/06/21

So right now, so we had proposed some language to expand 

this provision, not only to include legal requirements, 

but also de facto requirements that are imposed by 

states. So obviously we want to see the Department go 

further on this, that it is that it has. But even just 

looking at the language right now, I think we have 

concerns about it being limited only to state 

requirements. And I understand that state there is kind 

of serving a dual purpose of both individual states, but 

also a legal requirement. And our concern is that we've 

had clients who due to a disqualifying condition, have 

been denied eligibility have been denied employment from 

federal positions. And so it's also federal requirements 

that can impose a burden. And so we would urge the 

Department to change, to either say, state or federal 

requirements or legal requirements or some other 

variation within the disqualifying status provision. 

Now, if kind of on a broader point for disqualifying 

status, if a department is not willing to expand it to 

include de facto prohibitions with language like we 

proposed, we think this is a good place for the 

Department to consider utilizing and putting into 

regulation its broad settlement and compromise 

authority. And I think this was touched on a little bit 

in session two, but the Department really does have 
38

Negotiated Rulemaking - 12/06/21

significant settlement and compromise authority that can 

be utilized to effectuate the statutory purposes and 

intent and kind of ensure that these regulations 

accomplish what they're designed to accomplish. And so I 

think it's true both with respect to all certification 

and disqualifying status and but just more broadly 

across the discussion this week, I think where there are 

places where the Department can put that authority into 

regulation, it should do so. And I'll circulate a memo 

from the Student Borrower Protection Center that lays 

out some specific examples on how to do it. Now I'm 

going to hop off and I'll come back on.

MS. JEFFRIES: Thank you, Josh. 

Justin.

MR. HAUSCHILD: Yeah, thank you, I 

Just want to say we appreciate where this regulatory 

text is broadly. Did want to circle back to an issue 

I've raised previously and which is one that was kind of 

the basis for a few anecdotes I shared and I believe if 

memory serves some of the stories that veterans have 

shared in public comment throughout the duration of 

these proceedings, but if memory fails there, I 

certainly raised these anecdotes. And that's the issue 

of institutions functionally accomplishing an 

unauthorized loan where the borrower isn't aware that 
39

Negotiated Rulemaking - 12/06/21

they're actually authorizing the loan. So we think this 

is probably covered by Borrower Defense regulations, but 

we do think the Department missed an opportunity here to 

potentially deal with this issue explicitly. We also 

think that the outcome is functionally the same. The 

student is aware that they're taking out the loan and 

the institution is functionally complicit in ensuring 

that that the loan is taken out without the borrowers 

knowledge. So it's really an issue that's important to 

our constituency, one that we have seen in a documented 

fashion have a severe impact on them. Would appreciate 

the Department's consideration of the language we 

submitted were certain that the department did consider 

consider it, but would like to see its inclusion here, 

but broadly speaking, appreciate where this language 

stands.

MS. JEFFRIES: Okay. Thank you, 

Justin. Daniel.

MR. BARKOWITZ: Thank you. I want to 

address the issue of the high school diploma. I have 

comfort with the language of the compromise language 

that's been introduced by the Department. My concern 

about going forward with further language is that the 

Department itself is de-emphasizing the requirement of 

collecting documentation of high school completion. 
40

Negotiated Rulemaking - 12/06/21

Namely, in last week's federal student aid conference, 

the Department announced that for 23 24 sorry for 22 23, 

they will no longer require as part of verification, 

completion of a high school diploma or high school 

transcript. So that leaves the only time in institutions 

going to have or require a high school transcript from a 

financial aid applicant in those situations where the 

school requires it for admission from every applicant 

for admission, and that is not a universal thing. So 

where I do see comfort is at least in the current 

language, there is some sense that if the school 

knowingly falsifies that, they be held liable, which I 

completely agree with. But the expanding that too much 

further is going to run a risk that institutions may or 

may not know and may need to rely on the Department 

allows this, and in fact, it's written in that the 

school could rely on the student's attestation of their 

completion as documentation of their completion. So just 

for the for the matter of the record.

MS. JEFFRIES: Thank you, Daniel. 

Carol.

DR. COLVIN: I just have two quick 

questions. On page 22 at the bottom of the page at 

685.215 section E 1 romanette 2, just curious as to why 

that language was removed. The as an alternative to an 
41

Negotiated Rulemaking - 12/06/21

official transcript or official copy of the borrowers 

high school diploma, the borrower submitted to the 

school and written attestation under penalty of perjury 

that the borrower had a high school diploma. I'm curious 

as to what the reason for that removal was? And then 

also Just to restate a previous concern, if a if it was 

determined that a student had a direct loan that was 

originated in at least one disbursement as a result of 

false certification, that there be some provision to 

automatically cancel or remove the master promissory 

note that was tied to that. So that we can be absolutely 

sure that there's no way that a student would be able to 

receive another direct loan under that master promissory 

note. Just as a protection for the student to make sure 

that they get all of those disclosures and all of that 

information, and that they are required to actually 

complete that MPM.

MS. JEFFRIES: Thank you, Carol. Josh.

MR. ROVENGER: Thanks. Just two more 

quick notes. The first is, and I mentioned this last 

time, the reapplication provision, and that's at the end 

of the direct loan reg. You know, again, right now, the 

regulation is silent on this and permits borrowers to 

reapply. I think we have a concern that this by 

including affirmatively including this language, it's 
42

Negotiated Rulemaking - 12/06/21

just inviting a future administration to reconsider that 

position and that there can be unintentional 

consequences by including it in here. We understand why 

the Department's doing it. We appreciate the sentiment. 

We think leave well enough alone on that issue. Then the 

other very small technical change on page 8 in the FFEL 

reg, if the Department could just turn he/she into the 

borrower or they would be appreciated. Thank you.

MS. JEFFRIES: Okay. Thank you, Josh. 

Any other comments or concerns at this point?

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

respond to some of the issues that Josh raised. In terms 

of group process, I know we talked about this before, we 

don't view anything in the current regulations in 

precluding group discharge, and I know we have a whole 

section on discharge with application and we just we can 

we can clarify that in future guidance. I think adding a 

whole other process for group discharge when it's not 

necessary to avail yourself of a group discharge. We 

just we didn't incorporate it, not because we, you know, 

we just don't view the regulations as precluding it as 

written. And so we can we can add further future 

guidance on how borrowers can avail themselves of group 

discharge, but we I'm understanding what you're wanting 

is some kind of steps of steps toward a group discharge 
43

Negotiated Rulemaking - 12/06/21

written into the regulation, and we just it's not 

necessary. Borrowers can avail themselves of that 

process under the proposed regulations. In terms of 

corroborating evidence, you're right that a lot of that 

we perceive as being under subregulatory guidance. So we 

can we can certainly clarify that standard elsewhere. 

Either in subregulatory guidance or in the preamble. We 

did look at your proposal regarding disqualifying status 

and we just had trouble reconciling. We we just found it 

difficult, the language difficult for the Department for 

the Department or guarantee agencies to make, you know, 

supportable determinations of eligibility based on that 

standard. So that's why we haven't added anything. The 

proposed language language that you submitted was a 

little bit too open ended for us and that's where we are 

with this and I'm trying to remember the other issues 

that you raised trying to keep them all in my head here. 

So I don't know if adding a successor system after this 

COD text may remedy some of your concerns about about 

successors, but technically origination is not tied to 

ED system, it is actually when a school creates a record 

in their system. So we didn't see an issue with how we 

framed it here. Carol, I want to, I'm sorry, not Carol, 

Josh, those are I'm sure I'm forgetting something, but I 

know you have your hand raised so you'll remind me.
44

Negotiated Rulemaking - 12/06/21

MS. JEFFRIES: Thanks, Jennifer Josh.

MR. ROVENGER: Thanks. So 

corroborating evidence, very much appreciate any 

clarification on subregulatory guidance and that sounds 

good. On the disqualified status provision, you know, I 

don't, I don't, that's not we're not going to withhold 

consensus on that issue. I do think that language comes 

from Colorado law. And so we do think it is 

administratable and that there's case law interpreting 

it that could also provide guidance and so would urge 

the Department, if not now, at some point in the future 

to reconsider that position. On group language, so the 

problem with the group, so we agree that as of right 

now, there the regulations permit, there's nothing in 

the regulations that preclude borrowers from submitting 

group applications. The problem is the Department sits 

on them and hasn't responded to them and without 

language in the regulation that explicitly acknowledges 

that right that that available right, it is more 

difficult for advocates and borrowers to fully obtain 

that remedy and seek relief if the Department does not 

act. And so if the Department agrees that this is 

something that already exists and doesn't have a problem 

with the concept, I guess I don't I guess I'm struggling 

to understand why the Department is resistant to 
45

Negotiated Rulemaking - 12/06/21

including even a very short like we proposed that just 

recognizes that right to relieve. And then finally, on 

origination, can you I think I'm just a little confused 

by the answer. Can you just clarify that? I think what 

you said is origination is when the when the school 

creates a record in their own system so it's even before 

the COD submission or something else?

MS. HONG: Yes, that's my 

understanding. When the school creates the record.

MR. ROVENGER: So I guess then that 

almost makes me think that the like then I guess I'm 

curious why the Department doesn't define origination as 

at that point at the time, the school creates the 

record? If it if it's happening even before the 

submission to the COD system.

MR. BARKOWITZ: And if I, if I, can 

add to that, Josh? The confusion I have then as an aid 

administrator is the origination system in COD is what 

validates the creation of the record. So I may package 

alone months before I batch that out to the Department. 

It's not really an originated loan until the Department 

acknowledges that through the COD system. So I'm back to 

the question that Josh has. I'm comfortable with the COD 

definition or whatever system of record the department 

has. But my adding the loan to a student financial aid 
46

Negotiated Rulemaking - 12/06/21

system may have nothing to do with the actual date in 

which they take on that loan.

MR. ROVENGER: And let me jump in 

again. I mean, one way, one option here might be to 

change the use of origination, so we appreciate what the 

Department is doing, moving away from distribution to to 

an earlier time origination. One kind of easier route 

may just be changing origination to certification and 

then leaving it to subregulatory application to 

determine the kind of certification with eligibility. 

And then it would also be more consistent with the 

language in the statute.

MS. JEFFRIES: Thank you, Josh. 

Jennifer, your hand us up is that from a previous? 

Okay.

MS. HONG: Yeah, that was from 

previous.

MS. JEFFRIES: Okay. Alright. Okay, so 

I'm not seeing any other hands. Why don't we go ahead 

and do a consensus, move to consensus, see where you're 

at and then we'll go from there and take a break. Okay? 

So on the issue of the false certification discharge, 

let's see your thumbs, please. Oh, I'm sorry, wait a 

minute, Michaela raised her hand.

MS. MARTIN: I'm sorry, so is this 
47

Negotiated Rulemaking - 12/06/21

like the formal last call consensus check? Or are we 

saying that there's the potential we could circle back 

and do like another consensus check because I just want 

to be clear on that.

MS. JEFFRIES: The way consensus 

works, Michaela, is anytime we call for any a consensus 

is called for, it is an official consensus. If it if it 

reaches full consensus like you have on a couple of 

issues today, then the issue is pretty much done. Except 

I do know that in the one case, there was a couple of 

technical changes that Jennifer was going to make the 

tweaks on. If there is not 100% consensus, then we 

follow the process of asking you what your serious 

concern is, okay, and ask you to provide concise and 

articulate what what it would take in language for you 

to become on board. What is it you need to have? Okay. 

And just as we did with the previous one that did not 

reach consensus, it does get moved to the end of the 

agenda. We will circle back as time permits. Does that 

did that answer your question?

MS. MARTIN: Yes. So what you're 

saying it is like it is the official consensus check, 

however, we could come back to it?

MS. JEFFRIES: If it doesn't pass, 

yes, yes.
48

Negotiated Rulemaking - 12/06/21

MS. MARTIN: Okay.

MS. JEFFRIES: Yeah, that is true with 

any consensus because you don't have consensus, okay, if 

you don't reach consensus in time allows. certainly you 

would want to circle you could circle back to them. 

Okay? Josh.

MR. ROVENGER: Thanks. So so obviously 

defer to the Department and the group, but I would I 

would propose pushing the consensus check on this for a 

day, for a day or two. Just because I can't I can't 

speak for other negotiators, but for me, you know, I got 

a lot more pushback on the group issue than I think I 

relayed to the Department at session two. And so while 

there was tentative agreement at session two, you know, 

I think it would be beneficial if the Department could 

spend a day or two seeing if there's any possible 

movement on that issue. Before we took a consensus vote.

MS. HONG: I just I just want to just 

point out, I understand the concern from legal aide but 

it's a non regulatory problem that we're trying to 

address so allow us to remedy it through other means, 

operationally. I don't know that I don't know that, you 

know, adding more language to the regulations is going 

to remedy the issue of your constituency. But we can 

certainly make improvements internally to ensure that 
49

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these group discharge applications get processed because 

again, the regulations as proposed allow for it.

MR. ROVENGER: So can I respond? 

Thanks. So I think our concern is less what this 

administration will do with respect to group discharges 

and more, what a future one will do without it in the 

regulatory language, it becomes much more difficult for 

us to seek to compel unlawfully withheld action or 

unreasonably delayed conduct without either statutory or 

regulatory language, specifically saying the Department 

has a duty to decide these things. And so while we 

appreciate the Department's willingness to beef up a 

process elsewhere, it really is important from our 

perspective to have it in the regulation.

MS. JEFFRIES: Thank you, Josh. Brian, 

did you want to add something?

MR. SIEGEL: Yeah, it's interesting 

Josh is taking or I guess the AGs generally have taken a 

different view on two different provisions. One, they 

want language in here that we think actually emphasizes 

or could emphasize a problem. And then they want to take 

out language on reconsideration or reapplication because 

they're concerned that that it may focus on it. I 

understand why you have a different approach in the two 

cases, but from our perspective, you know, we're taking 
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Negotiated Rulemaking - 12/06/21

the opposite approach on the two. And while we can take 

it back and talk about it internally, I just encourage 

Josh and legal aid generally, are there things that we 

can include in the preamble that would provide enough 

confidence for you? And it may not. But you know, that's 

that's the way you're hearing pushback from us that we 

don't really want to include this in the reg. Is there a 

way we can address it through the preamble? I guess also 

keep in mind that if we include a group process, it it 

allows the future administration to focus on it and take 

it out. So there is a risk that it that it, you know, 

sometimes things that are not not in the regs, don't get 

as much attention. So just I'd encourage you to think 

about those areas.

MS. JEFFRIES: Thank you, Brian. 

Justin, I had your next. Did you take your hand down and 

come back or?

MR. HAUSCHILD: I want to defer to 

Josh because mine is on a different topic.

MS. JEFFRIES: Okay, great. Thank you. 

Go ahead, Josh.

MR. ROVENGER: Thanks, Justin. So 

Brian, I appreciate all that, and I recognize that in 

one instance, we're asking for something to come out of 

the reg for that very reason. I think the distinction is 
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Negotiated Rulemaking - 12/06/21

just there is so much case law about when an agency has 

an obligation whether an agency has an obligation to act 

and what you need to show for it to prove that the 

agency has unlawfully withheld action. And that's why it 

needs to be in the regulation. You know, if the choice 

is between what it is now and language in the preamble, 

obviously we're going to choose language in the 

preamble. But I think our it is our very strong 

preference for it to be in the regulation.

MS. JEFFRIES: Okay, thank you. 

Jennifer, did you have a response to that or? You're on 

mute.

MS. HONG: Yes, sorry. I wanted to, 

well, first I realized I had to move back to Carol's 

question, but I looking at the chat and thank you 

Daniel, I think directed so, so Carol unless you 

continue to have questioned. It's not that that section 

on page 22 was deleted it's just replaced with language 

earlier on on page 18. So let us know if you have if you 

continue to have concerns. What I'm hearing from you, 

Josh, is that and what we the Department is putting 

forward is that we're we can capture these concepts in 

the preamble and have a good solid discussion about this 

very concern about group discharge. We can capture that 

in the preamble and in future guidance.
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Negotiated Rulemaking - 12/06/21

MR. ROVENGER: So. That's I mean, if 

the choice is between nothing and that, but I have, I 

think I have to withhold consensus unless it's in the 

regulation, at least unless there some legal bar for it 

to be in the regulation. And so again, we just ask the 

Department to take it back for consideration.

MS. JEFFRIES: Thank you, Josh. 

Justin.

MR. HAUSCHILD: Yeah, and so this is 

sorry for the the different road here, but I'm curious 

if I could get the Department's position on why they 

chose not to address instances where schools effectuate 

the unknowing authorization of a loan by a student in 

these regs.

MS. JEFFRIES: Okay. Thank you, 

Justin. Did you want to put that question in the chat? 

Oh you have your hand back up.

MR. HAUSCHILD: Yeah, and I just I 

mean, I just was curious if I could, and maybe it's 

something they need to come back, get back with us on, 

but was just curious in terms of an explanation or any 

reasoning behind the Department's decision not to 

address that. Maybe Brian Brian has something here.

MS. JEFFRIES: Okay, Brian.

MR. SIEGEL: Yeah, we generally treat 
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Negotiated Rulemaking - 12/06/21

that as fraud, and we have an application now that 

specifically addresses fraud, it's a common law cause of 

action. We don't have to go through the false 

certification process. That's why we drew that 

distinction a number of years ago. And so we've never 

included it in the definition of false cert.

MS. JEFFRIES: Thank you, Brian. I 

think I think here's where we're at with this. We're 

going to go ahead and take the consensus. Understanding 

Josh with, I mean, you articulated your position very 

clearly. But in holding true with the process that we've 

been utilizing and taking consensus votes on each of 

these issues as they are presented. We're going to go 

ahead and move forward with that and see where it is. 

And then obviously, if it does not pass a consensus this 

time around, as the proposals come in, we will circle 

back to it at a later date, just as we will time 

permitting with the others. Okay? So with that, I'd like 

to see your thumbs. If I may? Alright. Heather is a 

thumbs up. David Tandberg is a sideways. Marjorie 

Dorime-Williams thumbs up. Daniel thumbs up. Joe 

sideways thumb. Christina thumbs up. Misty thumbs up. 

Bethany sideways thumb. Carol thumbs up. Anne are you 

abstaining? That is considered officially as a thumbs 

up. Jeri is a sideways thumb. Noelia is a thumbs up. 
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Jaye thumbs up. Dixie sideways thumb. Josh is a thumbs 

down. Justin is sideways thumb. And Michaela is a 

sideways thumb. So Justin is the Justin is a sideways 

thumb, right? I got that right. Okay, thanks. Josh, 

anything else you want to add? Are you at this point 

just asking standing with your previous proposal if you 

have something different to offer to the Department, I 

would encourage you to do so and we will place this 

we'll table this for now and move back through these 

issues that did not pass consensus later on in the week 

as time permits. Okay?

MR. ROVENGER: Yeah. The only thing I 

would say is I would ask the Department to consider all 

the things that we discussed today. But the one that 

would change me from a thumbs down to sideways is the 

group issue.

MS. JEFFRIES: Thank you, Josh. 

Alright, with that, it is 2:26, let's take a ten minute 

afternoon break so people can get up, stretch, get 

something to drink. I'm actually going around that, I 

don't know, let's round it to 2:30 because everybody's 

clocks are different. So let's say at 2:40 will return 

here and if we could go off live stream at this point 

for that break. I'd appreciate it. Oh, Jennifer.

MS. HONG: Real quick, Justin, can you 
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Negotiated Rulemaking - 12/06/21

can you put your question in the chat please? Just so I 

can circle back with you.

MR. HAUSCHILD: About unknowing 

authorization of the loan?

MS. HONG: Yes.

MR. HAUSCHILD: Sure. Yeah, thank you.

MS. HONG: Thank you.

MS. JEFFRIES: Okay, thank you. So if 

we can go.

MS. JEFFRIES: Appreciate it. With 

that, we'll pick back up there is Justin does have his 

hand up and will complete this before we move on to the 

next issue of creating a new Income Driven Repayment 

Plan. So Justin.

MR. HAUSCHILD: Thank you so much. I 

guess, I'm Just trying to get some additional 

clarification around the clarification Brian provided 

previously for the forgery process or the separate 

process that's meant to address the unknowing

authorization of a loan that borrower did not want. So 

was curious if you just get some more information. I 

guess I'm broadly aware that there's kind of this 

forgery (phonetic) process at the Department maybe, 

maybe a new form of process within the last year or two. 

But you know, from what I can tell, it doesn't seem to 
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Negotiated Rulemaking - 12/06/21

address the issue that we're talking about, which is 

where an individual actually signed the loan document. 

Their signature was effectuated, but they didn't they 

didn't know they were actually signing up for a loan. Or 

maybe they were even deceived into signing up for 

something that turned out to be a loan. So if I could 

just get some additional clarification around that? The 

issue would be that they didn't intend to take out the 

loans, but that they did sign the actual loan document. 

I think that's the issue here, at least if we're talking 

about forgery process.

MS. JEFFRIES: Thank you, Justin. 

Jennifer.

MS. HONG: I think that's why I'm 

confused, Justin. I just want to make sure so this is 

what you're describing, isn't that encompassed under on 

page 17? Certifying under romanette 3, sign the 

borrowers name on the loan application or promissory 

note without the borrowers authorization.

MR. HAUSCHILD: I mean, from our 

perspective, it's not that the so I guess I'm thinking 

about this in the instance of electronic signature, 

right? And the borrower signing something that they're 

not aware of is (inaudible) yet or otherwise a loan 

authorizing document. They've actually signed it 
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themselves, but they're not aware that they've signed 

for a loan, right? Or they were told they were signing 

for something else or they were signing for a 

conglomeration of things, whatever it might be. So the 

problem here, my estimation is that they've actually 

signed it themselves, but they didn't actually intend to 

take out a federal student loan.

MS. HONG: That's what we were 

intending to capture, just the scenario you described, 

for example, under two at the bottom of page 17 for 

unauthorized payment. Right. So the Secretary discharges 

borrowers and endorsers obligation to repay a direct 

loan if a school without the borrowers authorization 

endorsed the borrowers loan check or sign the borrowers 

authorization for electronic funds transfer unless the 

proceeds of the loan were delivered to the student or 

applied to charges owed by the student to the school. 

It's meant to encompass, you know, if.

MR. HAUSCHILD: I guess. Yes, go 

ahead. Yes, go ahead.

MS. HONG: No, no, go ahead.

MR. HAUSCHILD: I guess our concern is 

that it seems that the language is it's reliant on the 

school being the signer. And in the situation that that 

we're discussing, it's where the individual signs, but 
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not under the impression or with the intent to actually 

authorize a loan. So we're reading the language that 

that that's currently here in the text, you know, to be 

the institution's actions. You know, we're like, yes, 

right, where the institution endorsed, you know.

MS. HONG: We talked about this 

earlier about that what you're describing being BD more 

on the BD side. Because the false certification regs 

apply to institutions falsely certified.

MR. HAUSCHILD: Right. And we think 

the link here is that the institution is effectuating 

the unknown authorization of a loan. But do do recognize 

that this very well may fall within the structure of in 

scope of BD, but just feel that perhaps the Department's 

missing an opportunity here to very explicitly address 

the safety within the context of false cert where 

there's an arguable nexus between the institution 

effectuating the signature the student's signature 

unknowing authorization. But we just wanted to get some 

additional clarification. So.

MS. HONG: Yes, now I recall the 

discussion regarding this issue, and I think I mean, I 

understand your point and I think based on our internal 

discussions, we felt that that was our, you know, fell 

under Borrower Defense claim more than it did under. 
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Negotiated Rulemaking - 12/06/21

Although although you're I'm following your logic here, 

but this is where we landed.

MR. HAUSCHILD: Okay, understood. And 

just if I could just get clarification, because if there 

is something out there that's already a process the 

Department there certainly would be veterans that that 

should probably be filling out any form or taking part 

in a process that's meant to address this issue. So if I 

could just get some clarification, it sounded like maybe 

there was a process at play to address this very thing, 

but was just hoping it could get a little more 

clarification on that.

MS. JEFFRIES: Brian, I see came off 

mute. Did you want to say something?

MR. SIEGEL: No, Jennifer covered what 

I was going to say, so.

MS. JEFFRIES: Okay. Alright, great. 

Thank you. So with that, we will table that issue for 

now and move on. I do want to remind everyone both on 

the committee and the public listening in that public 

comment will start around 3:30, from 3:30 to 4. We do 

have a full list with a waiting list, but we encourage 

you to continue your process and we ask that those of 

you with scheduled times that you please sign in several 

minutes before your scheduled time so that we can get in 
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Negotiated Rulemaking - 12/06/21

as many people as possible during that time period. So 

with that, we'll move on to creating a new Income Driven 

Repayment plan. Jennifer, are you ready to walk us 

through that?

MS. HONG: I see Persis's hand. I 

also, I think Carol had her hand up. I don't want to 

miss, I'm not sure if she had an outstanding false 

certification issue.

MS. JEFFRIES: Yeah, I did see Persis 

come up as I was speaking and now Carol. So Persis.

MS. YU: So my comment is as it 

relates to the Income Driven Repayment of a more 

overarching conversation, so if Carol has one that's 

that relating back to false cert, I will defer to Carol.

DR. COLVIN: I was just going to state 

that I think regarding Justin's concerned that that 

would hopefully fall under misrepresentation or BDR 

claim. But it does go back to the to the question that I 

had earlier on making sure that there is no outstanding 

MPN. So it would give a student every opportunity to 

understand that they were taking out a loan, so that 

there was absolutely no chance that they could use an 

MPN that was falsely done, somebody who had completed 

for them or that they had been ushered through without a 

complete understanding. It just as an added layer of 
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protection to make sure that they understand if they 

have to complete a new master promissory note and are 

able to walk through that process in order to get a new 

loan. That was it.

MS. JEFFRIES: Okay. Thank you. 

Alright, Persis.

MS. YU: Thank you. I wanted to take a 

brief minute before we start diving into the details of 

the Income Driven Repayment because when we received the 

the proposal from the Department of Education, I think 

that there was a lot of, I won't speak for everybody 

else, but there was a lot of discontentment with the 

proposal that we received. And I I wanted to express 

that right off the top as a broader issue that we came 

into these negotiations with a lot of hopes of solving a 

lot of problems. The Department, in their first issue 

statement, identified a lot of the problems. I think a 

lot of folks here are concerned with issues around the 

racial justice implications of the fact that our Income 

Driven Repayment programs are not working. The fact that 

folks have smaller balances and very low incomes and are 

not getting cancelation well most people are not getting 

cancelation at all, but certainly and not a timeframe 

that is reasonable. The proposal that the Department has 

provided us seems like frankly just tinkering around the 
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edges of what we've seen before. And there's a sense 

that a lot of us don't want to be here again in a couple 

of years just to re renegotiate tinkering of the terms 

one more time. I would, before we get into the details, 

like to call a caucus of all of the nonfederal 

negotiators so that we can have an opportunity to 

discuss this together and including also our advisors, 

Heather and Raj.

MS. MARTIN: Persis, can we hear from 

the Department just like if they have any opening before 

we do that?

MS. YU: I'm happy to listen to an 

opening if we are going.

MS. MARTIN: Sorry, I just wanted to 

see if they have any, you know, any like newness out of 

optimism. Sorry.

MS. HONG: I'm sorry, Michaela, I 

missed the first part of what you about the do I have an 

opening? Is that what you're asking?

MS. MARTIN: Yeah, like if you were 

planning on just like going through the changes as 

proposed or if there was anything else at the Department 

wanted on our radar or like conversationally? Before we 

went into a caucus situation that Persis asked for.

MS. HONG: Yeah, I understand your 
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need for caucus and I regret that, you know, you know, 

in terms of expectations. But I do think that there are 

some really good things about this this plan that we're 

putting forward. I just I want to remind you that this 

was we had this at the end of session one. You know, we 

were we were doing the best that we could to kind of put 

some reg language together so that we come to session 

two. That was still very much in draft form. There were 

there were a lot of unanswered questions that we really 

went back and tried to consider everything that was 

discussed here. So I I guess maybe it's best you can all 

caucus and I'm happy to go over the changes as proposed 

for session three when we return.

MS. JEFFRIES: Thank you, Jennifer. So 

Brady, I'm going to ask you to set up that breakout 

room, and while we do this, I would like us to stop the 

livestream while we set up for that and the party's 

caucus. And then once they return to the main table, we 

will resume the live broadcast. If you could let us know 

when we're no longer live. Okay. Welcome back from 

caucus. We can go ahead and proceed unless I see any 

hands. I'm going to ask Jennifer from the Department to 

walk us through the document that the Department has 

provided.

MS. HONG: Okay great. Thanks, Cindy. 
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So just by way of introduction, you've heard us a lot 

talk talking about our concern for defaulted borrowers. 

We think that IDR is a crucial benefit for borrowers, 

but our concerns have always been how can we attract 

more borrowers to the program? Despite the existence of 

these Income Driven Repayment plans, we still see a lot 

of borrowers defaulting. So many of the principles and 

ideas that the president has set forth regarding a 

proposal is akin to a lot of the principles that we've 

proposed here. And again, we've we're emphasizing 

undergraduates and lower payments, and I think this 

proposal reflects that. That's not to say that graduate 

credentials aren't important, we recognize that they are 

important. However, we've were focusing on undergraduate 

credentials as a ticket into the middle class, and it is 

the first boost from undergrad that is a key path to the 

middle class. So and also the fact that undergraduate 

borrowers are far more likely to risk default due to 

issues like (inaudible) completion, and that's really 

where we were trying to shine our light on in terms of 

this proposal. We believe that this proposal will 

significantly release student loan repayments for 

undergraduate borrowers. After some deliberation, we 

felt that the marginal rate will target benefits for 

those who have the lowest incomes while providing 
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Negotiated Rulemaking - 12/06/21

benefits to those who earn more. We also appreciate all 

the ideas and issues raised by negotiators. We did 

consider them. There were many that we felt like we 

couldn't legally do to include monthly and annual 

cancelation. And others, we just felt like we couldn't 

we weren't comfortable with proposing at this time. So 

those are some general remarks, I'm happy to get into 

the text at this point. If we could get Vanessa to cue 

the text. We just get. Okay. Okay, so we've highlighted 

areas where we proposed changes between sessions two and 

three. The first one on page one is just pointing out 

the definitions for discretionary income eligible loan. 

This section doesn't apply to EICR just clarifies 

eligibility for plans that have a partial financial 

hardship and that's on page one. You may recall that 

we've condensed all the IDR plans into this one section 

of regulations. On page two, at the bottom, just to flag 

that the Department removed the language around 

proration from session to which we felt was confusing 

and rewrote this to make it a bit clearer. It's not it's 

not a substantive change, it's just a wordsmithing at 

this point. Right above that, the definitions for income 

AGI is reported to the IRS or alternative documentation 

of all forms of tax taxable income received. Just to 

clarify, monthly payment or the equivalent, means a 
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required monthly payment made under one of the repayment 

plans described above a month in which a borrower 

receives a deferment or forbearance. A repayment under 

one of the deferment or forbearance conditions listed in 

paragraphs K 4 4 A through K of this section, which we 

will get to. Or a month in which the borrower makes the 

payment in accordance with the Hold Harmless procedures 

described in paragraph K 6 of this section. So again, 

we're counting monthly payments for deferment or 

forbearances that we'll outline later in the proposal, 

as well as we've built in a Hold Harmless procedure for 

forbearance steering. That's been a real issue. So we 

wanted to put that in the regulation. We've always have 

the authority to make this account corrections as 

necessary, but we wanted to make that explicit in the 

regulation. I see hands up. Maybe we should take this. I 

saw I saw Persis and then I saw Bethany. Would it be 

helpful just to kind of take this section by section 

instead of going through the whole document?

MS. LILLY: So that was a question I 

actually had for the Department, because I think one of 

the takeaways from our caucus just now is that I think 

we have a major list like a we appreciate that the 

Department has updated this proposal. We appreciate that 

the Department has made changes that will improve 
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programs for undergrad borrowers. But we have a 

collection of kind of major issues and concerns that we 

want to discuss and we don't know. We thought it would 

be most helpful for the Department if we discussed each 

issue in turn, because then we can have that discussion 

where we can figure out why the Department didn't adopt 

proposals that we have made and figure out if there's a 

way we could work to something where we would all be a 

lot happier. And so I I'm happy to start like it was 

around the discretionary income piece, it was around the 

400%. But like I would just it would be helpful to me to 

understand if that's helpful to the Department to move 

piece by piece, because that does make, I think, a 

little bit more sense to us. A lot of us have read over 

this document very carefully and I think care a lot 

about what's in it. So. And we do appreciate the amount 

of work that the Department has put into this, and we've

certainly sent you guys a lot of proposals that I'm sure 

have been messy to compile.

MS. HONG: I appreciate that, Bethany. 

I think that makes a lot of sense, so let's see, so I, 

let's we can stop, why don't we stop right there. So I 

ended on definition of monthly payment and income and 

then we talked about, just like the minor technical 

change for partial financial hardship at the bottom of 
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Negotiated Rulemaking - 12/06/21

page two. We talked about just kind of the overriding 

concept and targeting of undergraduate borrowers in 

particular, in particular lower payments, and that's 

what we prioritized. So why don't we stop there so we're 

looking at definitions under general all the way through 

the end of page two. We'll take, we'll put a pin there 

and then we can proceed because I see hands up.

MS. MACK: Cindy, you're on mute.

MS. JEFFRIES: Okay, I do want to 

remind you, we are six minutes from public comments, so 

we will get through as much as we can before that 3:30 

mark. Okay? Bethany.

MS. LILLY: Well, part of the reason I 

was asking is that part of my comments rely on the EICR 

plan that we discussed later in the regulations, but are 

tied into this discretionary concept and ideas. And 

that's, you know, we proposed a 400% exclusion for the 

new plan. We thought that that would make the plan 

substantially better than all of the other plans out 

there. And that was our goal because we wanted to make 

this as simplified and easy for borrowers to understand. 

This is the plan you need to be in. This is how you get 

your payments like this is the best plan. Yes, there are 

other plans, but simplifying it as much as possible for 

borrowers so they don't face this massive list of plans. 
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Negotiated Rulemaking - 12/06/21

That's kind of all over the place. And unfortunately, 

the exclusion of grad borrowers kind of implicitly it 

does that it forces grad borrowers to think about this 

differently than everyone else. But to the discretionary 

income point, I mean, I work with the federal poverty 

level all the time. And even at 200% of federal poverty, 

we are only talking about 200 or 25,000 dollars a year 

for people across this country. And then they have to 

start making payments on that. And I don't know about 

you, but I can't imagine trying to make you manage 

living, paying rent and doing everything else on 200 

25,000 dollars a year, like that's incredibly low. So 

when we're talking about this to my mind, we should 

really be trying. I think the Department is correct. We 

should be trying to target borrowers. But one of the 

easiest ways to do that is to think about the amount of 

money that you're excluding just at that base level. So 

if it's not going to be that, then there are there ways 

that we could be getting at folks who are continue to be 

really low income or, you know, percentage wise, like 

low income. And maybe it's some combination between the

discretionary income cap and then the percentage of 

payment, like because you with that 5%, you are only 

covering 100% of kind of that that transition period. 

The ACA subsidies go up to 400. You've got all of these 
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Negotiated Rulemaking - 12/06/21

other federal programs that go higher than that. To my 

mind, if you're going to do it like at least build out 

kind of a phase in one way or the other, that doesn't 

have that cliff that goes straight from 5 to 10. I mean, 

that's a huge percentage change when you switch from 

300% federal poverty to like 301% federal poverty. And 

to me, that's really not helping those kind of, I guess, 

I would say, low to middle income people. But like 

honestly, even 400% of the federal poverty line isn't 

approaching, what is the median income in this country? 

And so I I really struggle with the Department's 

decision there. And so I would appreciate some guidance 

around what is there flexibility there? Will the 

Department consider going up to 300? Because I think 

that's going to impact and Raj probably has a much 

larger point than me. But just as a starting point, that 

is that is where I am trying, struggling and trying to 

come to. Some come up with some ideas that will help me 

get to a place where I can agree to this proposal 

because I do think it has a lot of improvements in other 

spaces.

MS. JEFFRIES: Thank you, Bethany. 

Persis, you have approximately a minute and a half.

MS. YU: Okay, well then I will, I'll 

choose my statements and then pick up tomorrow. But I 
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mean, I think I very much appreciate I have worked my 

entire career with defaulted student loan borrowers and 

so I appreciate the focus on defaulted student loan 

borrowers. What I think the problem is that I don't 

think that this proposal fundamentally understands why 

borrowers default. And it does not take into 

consideration the multitude of problems. And I think 

affordability is one huge problem why borrowers default. 

I have some research that I am willing to share from my 

colleague that shows that like in many places, 

especially if you have children, it really is, over 300% 

of federal poverty is the self-sustaining selfsufficiency wage standard. So I'm happy to send that 

around. But borrowers default both because it's not 

unaffordable. But as a legal aid provider who's all of 

my clients are below 200%, you know, almost all of them 

have zero dollars and would have had zero dollar 

payments if they could get in. And so, yes, again, the 

having the future act implementation will be helpful in 

this. But we have almost all of my clients have been 

steered. And so the fact that we're not considering 

administrative forbearance is a huge problem.

MS. MACK: Please proceed, Persis. 

Someone was off mute, mistakenly.

MS. YU: Got it. Borrowers continue to 
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see their balances grow and they feel hopeless. 

Borrowers that do find when I've counseled borrowers 

about Income Driven Repayment, the fact that cancelation 

does not come for 20 years is a huge disincentive. The 

fact that they see their balances grow is a huge 

disincentive because people do not trust the federal 

government is going to cancel their loans after 20 

years. Fundamentally, people do not believe that is 

going to happen, and the evidence does not suggest that 

is going to happen. So there are larger structural 

changes that we need about restraining balanced growth, 

about shortening the time to cancelation. If you truly 

want to create a system in which borrowers do not 

default because of Income Driven Repayment.

MS. JEFFRIES: Thank you, Persis. With 

that, we will end this discussion for today, Persis, you 

will be first up tomorrow to fulfill the rest of your 

time that you were shorted today. It is 3:30, so we will 

start with the public comment. Kayla, who do we have 

first?

MS. MACK: I have admitted Karina 

Nielsen.

MS. JEFFRIES: Good afternoon, Ms. 

Nielson. Can you hear us? Can you hear us? Ms. Nielson, 

you are on mute, can you unmute yourself for public 
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comment? Ms. Nielsen, I would suggest that you mute your 

public live stream so you're not getting that feedback. 

Got it? Okay, thank you. Alright, so you will have three 

minutes to speak from the time you start speaking, so 

whenever you're ready.

MS. NIELSEN: Okay, great. Thank you 

very much. My name is Karina Nielsen and I work at San 

Francisco State University, and I'm calling in to 

provide some comment on the public service loan 

forgiveness waiver and specifically the rulemaking 

around spousal consolidation loans within the waiver 

program. And I'm especially concerned about the 

rulemaking for folks who have separated, divorced or 

estranged from their spouse and have a joint 

consolidation loan. So the joint consolidation loan just 

to make sure that we're understanding this was a program 

that no longer exists. It existed through 2006. Spouses 

were able to consolidate their loans together jointly 

and severally liable and then made payments together. 

The main motivation was to reduce the payments currently 

in order to manage those loans. You have to have good 

communication with the spouse. Sometimes that's not 

possible. And some of us may become eligible for public 

service loan forgiveness. Now, under the current waiver, 

under the consolidation case, my loans, let's say if I'm 
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Negotiated Rulemaking - 12/06/21

the one who's been paying them off and is eligible would 

get forgiven, but I would still have to pay for my 

spouse's loans. And what my bottom line ask is the rule 

making consider the possibility of separating the 

spousal consolidation loans under the waiver. That is my 

bottom line ask. And it's especially beneficial for 

folks who are divorced or separated or estranged from 

their spouse. Sometimes they can't even manage the 

program, but they've made the payments. There is a 

bicameral, bipartisan bill that has been introduced for 

several years now it's called currently the Joint 

Consolidation Spousal Consolidation Loan Separation 

Bill. It sits in committee that's outside of the public 

service loan forgiveness, but these loans are treated 

very confusingly within the service the Fed loan 

servicer provider. A lot of the language doesn't make 

sense when you're going through and trying to provide 

the information you need and being unable to separate, 

it leaves one spouse responsible for another spouse's 

loans, and sometimes those loans can be very, very 

different in magnitude. So I'm asking for the committee 

to consider under the flexibility of the waiver to allow 

for the separation of those loans. So that's my whole 

comment. I really appreciate you considering it.

MS. JEFFRIES: Well, thank you very 
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much for your time today, Ms. Nielsen. You have a good 

day.

MS. NIELSEN: Take care. Bye bye.

MS. JEFFRIES: Bye bye.

MS. MACK: I've now, Cindy, admitted 

Julie Hynes for public comment. And she's connected to 

audio.

MS. JEFFRIES: I see. Ms. Hynes, can 

you hear us? Okay, if you could take yourself off mute. 

Okay, you will have three minutes, thanks for joining us 

today, you have three minutes to address the committee 

with your public comments and that time we'll start when 

you begin speaking, you will be given a 30 second notice 

before your time runs out. Okay?

MS. HYNES: Sounds good.

MS. JEFFRIES: Okay, go ahead.

MS. HYNES: Thank you. Thank you for 

the opportunity to provide my comments today. I'm a 

borrower that is about nine years into the public 

service loan forgiveness process, and I understand the 

goal of this rulemaking is to simplify the qualifying 

payment rules and allow certain types of deferment and 

forbearance to count towards the program. I have two 

recommendations for how we could simplify this related 

to forbearance. The first is that I think borrowers 
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should have forbearances count towards repayments if the 

amount they would have had to pay under the qualifying 

repayment plan was zero dollars for a similarly de 

minimis amount. Often, borrowers will start out their 

jobs in public service while they're in a forbearance, 

and it takes a few months to learn about the public 

service option. Think through the pros and cons, think 

about 10 years from now, all of this and make a final 

decision and submit the paperwork. The current rules do 

not give borrowers credit for those months in public 

service because borrowers are not in a qualifying 

repayment plan. However, these borrowers may not have 

owed anything at all had they been in the correct plan. 

So I think that PSLF rules should allow for credit for 

forbearance periods if the amounts that would have been 

due are at zero dollars or de minimis. It just seems 

like that would make things a lot easier and kind of 

achieve some of the goals of what this program was 

intended to create. My second recommendation is fairly 

similar, that borrowers should have forbearance count 

towards repayment if they were essentially forced to go 

into forbearance while they were still in public service 

while waiting for their annual income paperwork to be 

processed. In these situations, I think the borrower 

should make the federal government (inaudible) by paying 
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what would have been due during that temporary 

forbearance period with any interest. And to provide a 

little context on this, from my personal experience and 

from what I've heard from others, it takes a couple of 

years to figure out what you need to do every year to 

stay in the program. It's very easy to overlook an 

email. Your email might be your school's email or your 

personal email, and you might miss the call for your 

annual income paperwork. And I know I did that a couple 

of times. And if you do, you're kicked out of the 

program immediately and you get a huge bill. So for mine 

went from zero dollars to a thousand dollars and I 

didn't have that to pay. And when I called to kind of 

say, wow, I messed up, can I give you my information, I 

was told my only option at that point is to just go into 

forbearance and they'll process the paperwork and then 

I'll get back on the plan. And as a result, I'm still 

working in public service. The borrowers are still 

working, they're not receiving any qualifying payments 

during that time. The borrowers might have been very 

happy to make the payments required or to provide or to 

they may not have even owed anything, and I think that 

was the case for myself. So I think the PSLF rules 

should allow for credit for these forbearance periods 

that occurred due to late annual income paperwork if the 
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borrower makes the federal government (inaudible) by 

paying what would have been due. Thank you.

MS. JEFFRIES: Thank you, Ms. Hynes. 

Kayla, who's next, please?

MS. MACK: I have admitted Rachael 

Snyder for public comment.

MS. JEFFRIES: Good afternoon, Ms. 

Snyder. You will have three minutes for your public 

comment. Where'd she go? I seem to have lost her. There 

she's back, okay. Can you hear us okay, Ms. Snyder? Can 

you hear us?

MS. SNYDER: Hi, yes. Yes, now I can. 

Okay.

MS. JEFFRIES: Okay. Great. Perfect. 

You have three minutes for your public comment, you will 

be given a 30 second reminder of your time being almost 

up. Your time will start when you begin to speak soon 

whenever you're ready please feel free to proceed.

MS. SNYDER: Okay, I'm ready. I'm 

going to give this my best shot. So my name is Rachael 

Snyder. I am a 36 year old licensed social worker in the 

state of New York. I am very passionate about the idea 

of the student loan crisis. I really, truly believe it 

is a true financial crisis across multiple generations. 

I had worked for the, excuse me, the municipal city 
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government for 13 years. So I have I am on a PSLF track. 

So many things that have come up in the past several 

years since I graduated in 2014 is hearing a lot of 

conversation about graduate degrees not being treated 

similarly to undergraduate. And I know that's definitely 

been something that's been brought up multiple times by 

stakeholders. So I definitely hope that that is listened 

to because there are many of us out there with graduate 

degrees. I'd also like to talk more about capping the 

discretionary income at 5% because living in a city like 

New York, you can imagine rent expenses are very high, 

and it was very difficult to try to start repaying my 

loans. Every time that I called fed loan, who is my 

servicer, I was constantly told that the only option I 

had, despite outlining my monthly budget cost for 

living, was to go into a general forbearance. I was 

never given any other option, and as we know now, these 

months don't count. So I lost several years on the PSLF 

track because of this. So one thing I think that could 

be proposed is at least adding maybe a buyback option 

where employment is certified if those years cannot 

count just because you were having financial hardships, 

if those months cannot count, given the option at least 

to buy back those years so long as your employment has 

been certified. I also think that this has been said by 
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other borrowers as well, adding some sort of loan 

forgiveness on a every year public service worked basis. 

I think having it all or nothing plan really does deter 

people from entering public service, and I think it also 

does not help people eventually, because if you do leave 

the public sector for any reason, you are now bumped out 

of the program. And with that being said too, I'd like 

to ask that the term public service, as it was mentioned 

in the week of November 1st hearings, be expanded 

somewhat. Like I said, I am a social worker. As you 

know, many industries have privatized and a lot of this 

leaves out a lot of occupations such as nurses, social 

workers, doctors who no longer who don't have that 501 

3c status. I actually work for 501 3c now, however, the 

person who does my paycheck is a for profit agency, so I 

am now currently excluded, though I am doing full time 

40 hour a week work for a qualifying 501 3c. The last 

thing that I really wanted to talk about was the 

capitalized interest. I'm sorry?

MS. JEFFRIES: Unfortunately, your 

time is up. We do appreciate it. Thank you for joining 

us today. So.

MS. MACK: Cindy, I have now admitted 

Lisa Voight for public comment.

MS. JEFFRIES: Thank you. Ms. Voight, 
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can you hear us? Do you see her in there?

MS. MACK: Let's move on to the next. 

Brady, if can reach out to Ms. Voight. Next, I have 

admitted Mikeal Swanson.

MS. JEFFRIES: Good morning or good 

afternoon, I'm sorry, I lost track of the day. Good 

afternoon. You will have 30 minutes to to give your 

public comment. Three minutes. Jees, I'm losing it today 

on this call. You will be given a 30 second reminder 

just before your time elapses. It will begin whenever 

you're ready to speak, so please go ahead and proceed.

MR. SWENSON: Good afternoon. My name 

is Michael Swenson. I served in the U.S. Army for six 

and a half years, and I was deployed twice to 

Afghanistan, where I was wounded on May 16, 2011. I 

earned a Purple Heart that day. Upon discharge, I 

enrolled at Full Sail University in 2014, using my GI 

Bill and their bachelor program in music production. I 

had to drop out of the program after two years because 

the classes were so terrible. I'm now attending a 

community college that is of much higher quality. Even 

the introduction to music theory class at my community 

college taught me more than all four classes of music 

theory that I took at Full Sail, and one of them was an 

advanced theory class at Full Sail. Full Sail set 
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unrealistic expectations for its students and never 

taught us what we needed to know to succeed. For 

example, students were expected to learn to play the 

piano in one month. Coupled with the accelerated classes 

that lasted only a month, Full Sail curriculum is not 

designed to prepare students for a job because they 

didn't teach us anything. My instructor at Full Sail 

also had questionable credentials for teaching. One of 

them played in a band and apparently that that alone was 

enough to qualify him to teach. When I first talked to 

Full Sail before enrolling, they connected me with a 

recruiter who told me he was a former admiral in the 

U.S. Navy. Their recruiter used his military experience 

and his military rank to gain my trust. He told me Full 

Sail with pear graduates with employers and provide 

resources for their job search. I have now learned that 

nearly every promise made by recruiters was a lie. 

Because the school is not nationally accredited, credits 

were not transferable and my post-graduation job 

assistance was nonexistent. My program at Full Sail only 

had an 11% graduation rate, so I'm not the only one that 

knew this was a dead end. After I left Full Sail, all 

the school did to help me with my job search was give me 

unhelpful leads for jobs unrelated to what I was trained 

for. An example would be, a stagehand. I did not go to 
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college to become a stagehand. Now I have no GI Bill 

left, and none of my Full Sail credits will transfer. 

Even though I obtained an associate's degree in 

production from Full Sail, which granted me the degree 

years after I dropped out. I feel like Full Sail stole 

my hard earned education benefits from me because of 

Full Sail's deceptive recruiting practices and poor 

quality of teaching, I had to start college over again 

in my 30s. I have taken out federal student loans to 

attend community college. People look down on me because 

of the worthless degree I got from Full Sail University. 

I hope the Department of Education considers the painful 

stories of veterans like me as it develops policies to 

better protect us from coercive recruiting and worthless 

degrees. Thank you.

MS. JEFFRIES: Thank you, and thank 

you for your service, Mr. Swenson.

MR. SWENSON: Thank you very much.

MS. JEFFRIES: You're welcome. 

Alright, Ms. Voight, are ready to join us now?

MS. VOIGHT: Yes, I am.

MS. JEFFRIES: Okay, great. You will 

have.

MS. VOIGHT: Sorry about that.

MS. JEFFRIES: No worries.
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MS. VOIGHT: I can't really hear you 

guys. I can hear you a little bit, but not too much. And 

I do apologize. I kind of snuck out of work to call you 

guys.

MS. JEFFRIES: You will have three 

minutes.

MS. VOIGHT: What's that?

MS. JEFFRIES: You have three minutes 

to speak, okay?

MS. VOIGHT: So I want to make mine 

short and sweet. I know you guys have heard a lot of 

stories. There's been a lot of misinformation through 

the years. I would never have consolidated my loans if I 

would have known it was going to cancel out my payments 

that I had been making for so long. I had a lot of 

problems when I transferred my loans to fed loans. They 

immediately started calling me and threatening me to 

send me to a collection agency, starting the day after I 

transferred my loans. And even though they were all up 

to date for all my payments had been up to date. At this 

point, short, sweet, and I don't even know if this is 

the I've tried every I've tried to contact the 

Department of Education several times, fed loans several 

times, nobody can tell me anything. I have certified and 

recertified, they will only credit me for my current job 
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at the DMV. They will not look at or acknowledge the 

payments made while I was working for a government 

entity before consolidation. Nobody can tell me anything 

and I know I'm within 1 year of the 10 year payment at 

this point.

MS. JEFFRIES: We appreciate that. 

Thank you for your comment, Ms. Voight. Thank you for 

joining us today.

MS. VOIGHT: Alright.

MS. JEFFRIES: Alright. Okay. Kayla, 

who's next?

MS. MACK: Tammy McCarthy has been 

admitted for public comment.

MS. JEFFRIES: Okay. Ms. McCarthy, can 

you hear us? Brady, is she connected? She's not?

MR. ROBERTS: Not right now. Do you 

want to move on to the next one and I'll try to.

MS. MCCARTHY: I can hear, but I just 

can't see myself. Can you can you hear me?

MS. JEFFRIES: We can hear you. Yes.

MS. MCCARTHY: You can't see me, 

though?

MS. JEFFRIES: No, we can't see you.

MS. MCCARTHY: Oh, okay. Is that okay, 

though?
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MS. JEFFRIES: That is fine. That is 

fine. So, you will have three minutes for your public 

comment today. We appreciate you joining everyone and 

your three minutes will begin when you begin to speak 

and you will be given a 30 second reminder just before 

your time elapses. Okay?

MS. MCCARTHY: Okay. My name Is Tammy 

and I am an army veteran and have served in public 

service jobs for a total of 35 years. I used my GI Bill 

to help fund my undergraduate degree first at a 

community college and then at a state university. I am 

the first person in my family to attend college. In 

2009, I earned a Master of Science degree in speech 

language pathology. The GI Bill helped fund my 

undergraduate studies, but taking out student loans was 

the only way I was able to afford to pay for graduate 

school. I currently work as a speech language 

pathologist for a county office of education, serving 

preschoolers with special needs. I have worked in this 

position for the past 12 years. Even though I have 

worked in public service jobs most of my adult life, I 

only have around 6 years of service and payments that 

count towards PSLF. At the start of my current career, I 

was given incorrect information by loan servicers. I was 

told that I was on the right track for forgiveness. 
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However, I was not told that my FFEL loans were not the 

correct type of loan. I also was not told that during 

times when I could not afford my payments, I could have 

had my payments reduced to lower payments instead of 

putting my loans on deferment or forbearance. When the 

recent news about PSLF reform came out, at first I was 

elated. I thought I would finally receive the loan 

forgiveness I was promised since I had worked well over 

the 10 required years and the years prior to my 

consolidating to a direct loan would now count. However, 

my joy soon turned into dismay when I realized that the 

years that I could not afford payments were not going to 

count. I felt defeated, but today I would like to make 

some suggestions to make PSLF fair. Number one, allow 

for all periods of deferment and forbearance to count 

towards the time needed for forgiveness. Not everyone is 

eligible for economic hardship deferment. I know in my 

case I was told I did not qualify and I was put on a 

general forbearance. However, my family was certainly in 

a financial crisis. My husband had lost his job and we 

were literally counting coins to be able to afford rent 

and groceries in California. Secondly, please cap income 

based payments at 5% of AGI for both undergraduate and 

graduate school loans. People from low income 

backgrounds like myself often qualify for a portion of 
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their undergraduate schooling to be paid. However, most 

people who go to graduate school have to take out loans 

regardless of their economic background. In closing, it 

is now well known that loan servicers gave misleading 

and incorrect advice regarding PSLF for years. This has 

resulted in many public servants still not receiving 

loan forgiveness. Please right these wrongs so that the 

promise of public service loan forgiveness is honored. 

Thank you for your time and consideration.

MS. JEFFRIES: Thank you, Ms. 

McCarthy, and thank you for your service. Okay, who's 

next?

MS. MACK: Jodie Parks has been 

admitted for public comment.

MS. JEFFRIES: Okay.

MS. MACK: Connecting to audio.

MS. JEFFRIES: Alright, can you hear 

us?

MS. PARKS: Yes. Can you hear me?

MS. JEFFRIES: We sure can, welcome. 

Ms. Parks, you will have three minutes for your comment 

today. You will get a 30 second reminder just before 

your time elapses, so whenever you're ready, go right 

ahead.

MS. PARKS: Okay, good afternoon. My 
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name is Jody Parks and I'm a veteran of the U.S. Air 

Force. I'm here today to respectfully ask this panel to 

help make it easier for veterans like me to access the 

public student loan forgiveness program. For the past 

two months, I've had to jump through multiple hoops 

hoops just to access these benefits. I understand the 

Biden administration has proposed reforms to the program 

to lessen the bureaucratic burden for students. However, 

for veterans, there's are still too much red tape 

involved, and to this day, I have not been able to 

access a temporary waiver for the public service loan 

program. I graduated from the University of Illinois in 

2002 and had every intention of going back to school. I 

was in the Air Force from 2009 to 2015 and graduated 

from Maryville University in 2020 with a master's degree 

in occupational therapy. I have around $48,000 in loan 

debt from both undergraduate and graduate programs, and 

I've been making payments on these loans each month. I 

did use my GI Bill for my master's degree, but because 

of the demands of coursework and field work, the school 

suggested I shouldn't work more than eight hours a week. 

So the PSLF program seemed like the answer to my loan 

debt. A brief synopsis of what these past few months 

have been like. I utilize the PSLF tool, which generated 

form 1845-0110, which requires employee information and 
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an address. I also need an employer certification signed 

by someone in the Air Force. Since I hadn't been in the 

service since 2015, I no longer have access to a 

commander or someone higher up to sign off my forms. I 

contacted the Department of Financing and Service, which 

gave me a random number to call, which went directly to 

a voice mailbox. The first time I spoke with a live 

human, the person on the other end of the line was 

completely unfamiliar with the paperwork. They told me I 

had to contact the civilian branch since I was no longer 

active duty. I contacted the civilian branch and they 

told me to contact the active duty branch. This went 

back and forth for a while. Mind you, I have DD214, 

which should be all the documentation needed as proof of 

service, but somehow it wasn't enough. I then tried 

going through the VA, but they told me to take it to a 

commander. Again, I have not been in the service for 

almost seven years at this point. Then I was passed to 

PSLF specialist who told me to check a box on yet 

another form and then submit it with my past W-2s. This, 

of course, was also challenging as I don't keep my forms 

from. My DD 214 should have sufficed. If I was applying 

to a program as a civilian, I could easily have had 

someone in my HR department sign the form. But as a 

veteran, I have had no definite answer. Almost 
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everything we can do can be verified by DD 214. I can 

have my W-2s printed off, but this has become time 

sensitive as the deadline to apply to the PSLF program 

is October 2022. The current, like the current wait time 

we're getting past W-2s is.

MS. JEFFRIES: Ms. Parks, 

unfortunately your time has expired.

MS. PARKS: Oh, sorry.

MS. JEFFRIES: That's alright. We 

thank you for your comments today and especially thank 

you for your service.

MS. PARKS: Thank you, ma'am. I 

appreciate that and everybody on the panel. Thank you.

MS. JEFFRIES: You're welcome.

MS. MACK: Cindy, I have now admitted 

Dawn Hayes for public comment.

MS. JEFFRIES: Alright.

MS. HAYES: Good afternoon. My name is 

Dawn Marie Hayes and I'm a professor at Montclair State 

University an eligible PSLF employer at which I have 

taught full time for the past 19 years. I would like to 

begin by thanking you for this opportunity to 

respectfully urge you to include FFEL spousal 

consolidation loans into the PSLF. I was the first in my 

family to attend college. My mother was a single mom and 
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I left for my first day of college in September 1986 

from New York City Public Housing Project. I was 

determined to break a cycle of poverty and saw higher 

education as the way to do that. I did not know my 

father, and when I entered NYU, my mother earned less 

than the school's annual tuition. I was, in other words, 

solely responsible for financing my college education. 

Towards the end of my undergraduate years, I decided to 

pursue a career as a professor of history, a path that 

required a total of 12 years of full time study. I 

received my Ph.D. in 1998. During this time, I had 

married Joseph Hayes, my husband of now 28 years. We are 

the blessed parents of seven children. As we pursued 

careers while raising a large family, we did everything 

we could to simplify our lives. This included 

consolidating all loans in December of 2001, combining 

Joe's $8,000 debt with my much larger $74,000 burden for 

a total of $82,000. As of today, we have paid over 

$100,000 in interest and more than $33,000 in principal. 

We have not missed a payment in 23 years. In spite of 

this sacrifice and commitment, without your help, we 

will continue to pay on this loan until 2033, when I 

will be 65 years old. Our responsibility to repayment 

has meant that we have struggled for years as we support 

a large family and one of the most expensive regions in 
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the country. All seven children live at home, and 

although Joe and I make respectable salaries, we still 

live paycheck to paycheck. No cash margin to provide a 

buffer should we encounter our financial emergency. We 

have lived responsibly and thankfully have been able to 

avert financial crisis over the past three decades. But 

the stress and worry of encountering a hardship outside 

of our control has been and continues to be enormous. As 

PSLF became public, Joe and I were told that although we 

signed off on a loan that has the word federal in its 

title, our federal family education loan is actually 

backed by the state of New York and as such, is 

currently ineligible for a PSLF. I implore you to 

include these loans after a process of loan 

deconsolidation in the loan forgiveness program that has 

been generously extended to other borrowers, including 

those holding a spouse or consolidate consolidation 

direct loan. Doing so would help me, as well as scores 

of other Americans who rank among the longest paying 

student borrowers in the country. Thank you.

MS. JEFFRIES: Thank you.

MS. MACK: I think we've now made it 

through all folks who logged in today for public 

comment.

MS. JEFFRIES: Okay, I appreciate 
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that. So just a couple of closing comments here for 

tomorrow. Tomorrow morning, we will pick up with the IDR 

discussion and presentation on the outlined agenda. It 

does talk about Pell for prison education programs being 

next after that, but I'm letting you know we will be 

holding that for Wednesday discussion. And so we will 

move accordingly to to other topics beyond that so that 

we can honor the Wednesday date that we set aside for 

that prison education program. With that, I have no 

further announcements and I wish you all a good evening 

and we'll see you here tomorrow morning.
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1 Appendix

2

3 Department of Education

4 Office of Postsecondary Education

5 Zoom Chat Transcript

6 Affordability and Student Loans Committee

7 Session 3, Day 1, Afternoon, December 6, 2021

8

9 DISCLAIMER:

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

11 recording. Although the transcription is largely accurate; 

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

13 inaudible passages or transcription errors. It is posted as 

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

15 should not be treated as an authoritative record.

16

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

18 Everyone:

19 I'll be rejoining the table now.

20 From Christina, she/her (A) 2-Year Public to Everyone:

21 I'll be at the table now.

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

23 Thanks Daniel - very festive

24 From Justin (P) Servicemembers and Veterans to Everyone:

25 +1 Joe regarding transfers

26 From Bethany Lilly, The Arc (she/hers) to Everyone:

27 +1 Joe

28 From Michaela [P] Ind Student to Everyone:

29 +1
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1 From Marjorie (P), 4 Yr Public Inst. (she/her) to 

2 Everyone:

3 +1 Joe The evidence does not support the claims that 

4 students will simply transfer all their credits

5 From Dixie (P) Dependent Students to Everyone:

6 +1 Joe

7 From Justin (P) Servicemembers and Veterans to Everyone:

8 +1 Josh on "most" programs

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

10 +1

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

12 +1 David

13 From Michaela [P] Ind Student to Everyone:

14 What are the issues lingering? I think I lost track 

15 right now.

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

17 Everyone:

18 Thanks Heather!

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

20 Everyone:

21 Thank you.

22 From Bethany Lilly, The Arc (she/hers) to Everyone:

23 +1 to Michaela

24 From Dixie (P) Dependent Students to Everyone:

25 +1 Michaela

26 From David Tandberg (P) - State hi ed agencies to 
97

Negotiated Rulemaking - 12/06/21

1 Everyone:

2 +1

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

4 Everyone:

5 +1 Michaela

6 From Michaela [P] Ind Student to Everyone:

7 There was time before this to do that

8 From Justin (P) Servicemembers and Veterans to Everyone:

9 +1 Josh

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

11 Everyone:

12 +1 Josh!

13 From Bethany Lilly, The Arc (she/hers) to Everyone:

14 +1 to Josh

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

16 Everyone:

17 +1 Josh

18 From Michaela [P] Ind Student to Everyone:

19 +1

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

21 Everyone:

22 +1 Josh

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

24 Everyone:

25 +1 on sticking to the changes between 2 and 3, 

26 particularly on the re-enrollment issue. Keeping that 

27 will be key.
98

Negotiated Rulemaking - 12/06/21

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

2 I'm coming back to the table

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

4 Carol is coming back to the table.

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

6 Josh is back at the table for legal aid

7 From Joe, P, State AGs to Everyone:

8 +1 Josh on benefit of group false cert applications

9 From Justin (P) Servicemembers and Veterans to Everyone:

10 +1 Josh regarding group process

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

12 Carol, I think the language you referenced is covered 

13 by p. 18 (c) (ii).

14 From Carol (A)- Proprietary to Everyone:

15 Daniel, it is similar language, also appears on page 

16 22 685.215 (e)(1)(ii) at bottom of the page

17 From Carol (A)- Proprietary to Everyone:

18 Just FYI for reference, here is the language regarding 

19 definition of origination: from the FSA Handbook: The 

20 date of origination for a Direct Loan is the date a 

21 school creates the electronic loan

22 origination record in its computer system; this 

23 may differ from the date the school transmits

24 the record to the COD System or when the 

25 Department approves a record. A school may not

26 originate a Direct Loan for a loan period in 

27 which the student is no longer enrolled on at least a

28 half-time basis, even if the student is otherwise 

29 still enrolled at the school 
99

Negotiated Rulemaking - 12/06/21

1 here is the link 

2 https://fsapartners.ed.gov/sites/default/files/2021-

3 08/2122FSAHbkVol4Master.pdf

4 From Justin (P) Servicemembers and Veterans to Everyone:

5 Why has the Department decided not to include language 

6 in this regulatory text that would cover instances 

7 where a school effectuates a borrower's signing of a 

8 loan document where the borrower did not know they 

9 were signing for a loan?

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

11 I am coming back for the legal aid seat

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

13 Are we live? One of our constituent members reports 

14 she cannot log in...

15 From Brady FMCS Facilitator to Everyone:

16 Daniel- Can you DM me their issue?

17 From Joe, P, State AGs to Everyone:

18 +1 Persis

19 From Justin (P) Servicemembers and Veterans to Everyone:

20 +1 Persis

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

22 Everyone:

23 +1 Persis

24 From Bethany Lilly, The Arc (she/hers) to Everyone:

25 +1 Persis

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

27 Everyone:

28 Major issues/concerns:
100

Negotiated Rulemaking - 12/06/21

1 - Time to forgiveness | 10 years for undergrad / 

2 15 for grad or PLUS

3 - Counting of forbearances/deferments 

4 - Should not distinguish between grad & undergrad 

5 loans 

6 - Increase to 400% of poverty level

7 - Proposed plan is more complex/confusing

8 - Married borrower regulations make this more 

9 difficult

10 - Overall concerns about racial equity

11 - Growing balances

12 - Defaulted borrowers

13 - Counting payments | FFEL

14 From Joe, P, State AGs to Everyone:

15 +1 Bethany - EICR should be the clear best choice 

16 plan. Anything less is a missed opportunity that 

17 continues a systemic set of problems.

18 From Raj - Advisor Data & Econ to Everyone:

19 Keep in mind that I believe this is a marginal rate, 

20 which is the rate on the "next" dollar, not the total 

21 dollar amount

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

23 Everyone:

24 Or consider going to 400%?

25 From Joe, P, State AGs to Everyone:

26 +1 Persis on counting forbearances to account for 

27 steering

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

29 Everyone:
101

Negotiated Rulemaking - 12/06/21

1 +1

2 From Bethany Lilly, The Arc (she/hers) to Everyone:

3 +1 Persis on forbearances

4 From Bethany Lilly, The Arc (she/hers) to Everyone:

5 and everything else

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

7 400% is part of the new minimum Pell Grant calculation 

8 so there is precedent for FSA to consider a 400% 

9 allowance.