Committee Meetings - 03/18/22 1 

DEPARTMENT OF EDUCATION

OFFICE OF POSTSECONDARY EDUCATION

INSTITUTIONAL AND PROGRAMMATIC

ELIGIBILITY COMMITTEE

SESSION 3, DAY 5, MORNING

March 18, 2022 

On the 18th day of March, 2022, the following meeting

was held virtually, from 10:00 a.m. to 12:00 p.m., before Jamie 

Young, Shorthand Reporter in the state of New Jersey.
Committee Meetings - 03/18/22 2 

PROCEEDINGS 

MS. JEFFRIES: Good morning, everyone, and welcome 

back to day five of session three. This is the final day of 

this negotiated rulemaking. So, we do still have some work to 

do today. So, I'm going to go ahead and do our roll call. And 

I want to remind everybody, including myself, who did not do 

it, the naming protocol for the screens. I can't spell today 

either. Okay. So, with that, let's go ahead. I'd like all 

negotiators and alternates and the advisers to have their 

cameras on. With that, we'll start with accrediting agencies, 

Jamie Studley.

MS. STUDLEY: Good morning.

MS. JEFFRIES: Good morning. And the alternate, Mr. 

Jaylon Herbin.

MS. STUDLEY: The alternate is Laura Rasar King.

MS. JEFFRIES: I'm sorry I skipped down. I apologize. 

I looked down. Maybe I should turn my camera off, Beverly. The 

alternate, you're right, is Dr. Laura Rasar King. I apologize.

DR. KING: Good morning, Cindy. No problem.

MS. JEFFRIES: Good morning. Civil rights 

organizations and consumer advocacy organizations primary, Ms. 

Carolyn Fast.

MS. FAST: Good morning.

MS. JEFFRIES: And for real, alternate Mr. Jaylon 

Herbin.
Committee Meetings - 03/18/22 3 

MR. HERBIN: Morning.

MS. JEFFRIES: Good morning. Financial aid 

administrators at postsecondary Institutions, primary Ms. 

Samantha Veeder.

MS. VEEDER: Good morning.

MS. JEFFRIES: Good morning. Alternate is Mr. David 

Peterson.

MR. PETERSON: Good morning, everyone.

MS. JEFFRIES: Good morning. Four-year public 

institutions of higher education, Mr. Marvin Smith as primary.

MR. SMITH: Morning.

MS. JEFFRIES: Morning. And Ms. Debra Stanley is the 

alternate.

MS. STANLEY: Good morning.

MS. JEFFRIES: Morning. Legal assistance 

organizations that represent students and/or borrowers, 

primary Mr. Johnson Tyler who will not be with us today and 

therefore Ms. Jessica Ranucci, the alternate, will be at the 

table all day.

MS. RANUCCI: Good morning.

MS. JEFFRIES: Good morning. Minority serving 

institutions, Dr. Beverly Hogan as primary.

DR. HOGAN: Good morning, everyone.
Committee Meetings - 03/18/22 4 

MS. JEFFRIES: Morning. And alternate is Ms. Ashley 

Schofield. And I don't believe Ashley is with us today either. 

Private nonprofit institutions of higher education, primary 

Ms. Kelli Perry.

MS. PERRY: Morning, everyone.

MS. JEFFRIES: Morning. Alternate. Mr. Emmanual 

Gilroy.

MR. GUILLORY: Good morning and happy Friday.

MS. JEFFRIES: Good morning. Same to you. Proprietary 

institutions of higher education, Mr. Bradley Adams as 

primary.

MR. ADAMS: Morning.

MS. JEFFRIES: Good morning. And Mr. Michael 

Lanouette as the alternate.

DR. LANOUETTE: Good morning.

MS. JEFFRIES: Morning. State Attorneys General. Mr. 

Adam Welle as primary.

MR. WELLE: Morning.

MS. JEFFRIES: Morning. And Yael Shavit is the 

alternate. Doesn't look like she has joined us yet. State 

higher education executive officers state authorizing agencies 

and/or state regulators of institutions of higher education 

and/or loan services servicers, Ms. Debbie Cochrane is the 

primary.
Committee Meetings - 03/18/22 5 

MS. COCHRANE: Good morning, everyone.

MS. JEFFRIES: Good morning. And Mr. David Socolow is 

the alternate.

MR. SOCOLOW: Good morning.

MS. JEFFRIES: Morning. Students and student loan 

borrowers, Mr. Ernest Ezeugo is primary.

MR. EZEUGO: Morning, everyone.

MS. JEFFRIES: Morning. And Mr. Carney King is the 

alternate. It doesn't sound like Carney has joined us yet.

MS. SHAVIT: Sorry, Cynthia, yeah, this is Yael. I 

think it cut out right when I was trying. I'm having issues 

with connectivity. I'm going to stay off camera, but I'm here.

MS. JEFFRIES: Okay, great. Thank you for letting us 

know Yael. Okay. So two-year public institutions of higher 

education, Dr. Anne Kress is primary.

DR. KRESS: Good morning.

MS. JEFFRIES: Good morning. And Mr. William Durden 

is the alternate.

MR. DURDEN: Good morning.

MS. JEFFRIES: Good morning. U.S. military service 

members, veterans or groups representing them, Mr. Travis Horr 

as primary.

MR. HORR: Good morning.
Committee Meetings - 03/18/22 6 

MS. JEFFRIES: Morning. And Mr. Barmak Nassirian as 

alternates.

MR. NASSIRIAN: Morning.

MS. JEFFRIES: Civil rights, Ms. Amanda Martinez as 

primary.

MS. AMANDA MARTINEZ: Good morning.

MS. JEFFRIES: Good morning. So welcome to all of the 

esteemed negotiators, including, last but not least, the 

Department of Education, Greg Martin.

MR. MARTIN: Good morning.

MS. JEFFRIES: Good morning. We move on to our 

esteemed advisors, compliance auditor with experiencing 

auditing institutions that participate in the Title IV HEA 

programs, Mr. David McClintock.

MR. MCCLINTOCK: Good morning, everyone.

MS. JEFFRIES: Good morning. And labor economist or 

an individual with experience in policy research, 

accountability and/or analysis of higher education data, Dr. 

Adam Looney. Doesn't sound, doesn't appear as Dr. Looney has 

joined us at this point. Did I miss anyone?

MR. MARTIN: I think Steve Finley from the 

Department, Cindy.

MS. JEFFRIES: Oh, I am so sorry, Steve.

MR. FINLEY: No problem, good morning.
Committee Meetings - 03/18/22 7 

MS. JEFFRIES: You're sitting there very quiet. I 

apologize. Steve Finley is from the Department with from the 

general counsel's office. Alright. With that, like I mentioned 

when we started, this is your final day. The agenda today is

to finish the certification procedures that you were working 

on yesterday, moving through that document, including 

consensus check and then moving to your final issue paper on 

90/10 with the same process ending in a consensus check. I do 

want to remind all negotiators today that since this is the 

last day, let's please, when we use our three-minute comment 

to offer new concerns and/or amended language not to restate 

or indicate support of something already stated. Certainly,

continue to use the chat for that and that there will be no 

public comment today. Greg, is there anything you want to add?

MR. MARTIN: No, Cindy, we can get started whenever 

you're ready.

MS. JEFFRIES: I'm ready. Take it away.

MR. MARTIN: Alright. I believe Vanessa is driving 

for us this morning, and so she'll be bringing up where we are 

in the paper. And there we are at 668.43. When we left off 

last evening, we were looking at the language in 668.43 A in 

(a)(5) romanette five. So, we and it was pointed out by a 

number of people that the language was inconsistent with 

what's in what's in 32. So, we've gone back and word smithed a 

little bit and I will present that here. You can see the 

changes that we've made. So, if an educational program is 

designed to meet educational requirements for a specific 

professional license or certification that is required for 

employment in an occupation or as advertised as meeting such 
Committee Meetings - 03/18/22 8 

requirements. A list of all states where the institution is 

aware that the program does and does not meet, excuse me, such 

requirements. So, we've tried to change the tax payer to be 

more consistent with what's in 32. So essentially, you know, 

so it's absolutely the case that if the institution offers the 

program and in a specific state, that they must be aware that 

it does meet the licensure requirements. So that would have to 

be disclosed as such. If they know it does not, they would 

also be required to disclose that. If an institution does not, 

is not aware, obviously, it wouldn't be offering the the 

program in that state. There could be an instance where maybe 

a student has never applied from that state. They've never 

made a determination. And in that case, the institution would 

not be required to disclose that. But I think this exchange 

does address that inconsistency. But I will open the floor for 

any discussion on this last piece in 43.

MS. JEFFRIES: Okay. Thank you, Greg. Negotiators, 

any comments? Questions? Concerns? Kelli.

MS. PERRY: Emmanual was going to come to the table 

to ask a question. I couldn't type it as fast as I could just 

raise my hand, so.

MS. JEFFRIES: Perfect. Thanks, Kelli. Welcome, 

Emmanual.

MR. GUILLORY: Hi. So, I guess I can ask the 

question, now?

MS. JEFFRIES: Absolutely.
Committee Meetings - 03/18/22 9 

MR. GUILLORY: Okay. So, this is in regards to the 

changes that, well were not made regarding paragraph 32 around 

the state licensing requirements. And so, we got some 

questions from our members and I think they're pretty valid. 

And pretty much those questions are what happens to currently 

enrolled students? So, when this goes into effect, the 

students who are already in the program or have been accepted 

to the program, but institutions under current regulations 

have to disclose whether or not those requirements meet state 

licensing requirements or they don't, or undetermined that 

they do. What happens then? Will there be a transition period 

or institutions to come into compliance with these new 

requirements to meet all state licensing requirements? Also, 

my second question is how are institutions supposed to know 

when a student moves or seeks employment in another state to 

ensure that they meet the state licensing requirements of that 

state to be employed in that state? So once again, an issue 

that could arise is that a student who's in Florida doing 

online courses at the University of Alabama decides to move to 

Wisconsin. Well, University of Alabama needs to make sure that 

the state license requirements in Florida are met, but in 

order to seek employment, that student may not want to seek 

employment only in Florida, they may want to seek employment 

in Wisconsin. And so, with how the regulation is drafted, 

because state licensing requirements need to be met in the 

states where students seek employment and that could be very, 

very tricky for institutions to know exactly how to do that. 

And currently, right now in 600.9, institutions are only 

required to disclose to students if that state license 

requirements are met. So those two questions are questions 
Committee Meetings - 03/18/22 10

that I have for the Department if they are still unwilling to 

make any modifications to paragraph 32. Thank you.

MR. MARTIN: I. With reference to the states 

employment. I mean, we look at 32 in each state in which the 

institution is located or which in which the institution is 

located, or which the students enrolled in the institution are 

located. The institution must make these, hold on one second 

here, these must make the determination that the program is 

indeed eligible. It doesn't require that if students leave the 

area, they're located in to seek employment elsewhere, that 

obviates obviously the student went once, once the student 

could leave the state in which he or she is located to seek 

employment elsewhere. We're not requiring schools to be to be 

aware of that. We are requiring that it meets the 

certification requirements where the student is located or in 

the state in which the institution is is located. So, I don't 

think, I don't know that that's as much of an issue. What was 

the other question? I forgot the other question that you were 

asking.

MR. GUILLORY: Yeah, Greg, just a quick response to 

that, I think the concern is in romanette two, when it says 

seeks employment in that state, qualifies to take any 

licensure or certification exam that is needed. So, one can 

interpret that to mean in that state, to mean, if the students 

in Florida taking classes from University of Alabama, then 

it's only the state of Florida, only. But then it could also 

be interpreted to mean that the state and whatever the student 

seeks employment. So that could be Florida, that could be 

Alabama, that could be Wisconsin. I think there's just some 
Committee Meetings - 03/18/22 11

grayness there. And with the proposal, once again, that Barmak 

and Carolyn put out, at least that was clarified a little bit 

more. And then with our proposal that we have put out, we kind 

of allowed for this to be a little bit clearer. So, I just 

wanted to reiterate that. But the other question I had was 

around the transition period. So, for institutions that will 

now have to comply with this because this is new, what happens 

to currently enrolled students or students who have already 

been accepted into the program where this institution did not 

obviously, they only disclose whether or not the program meets 

state licensing requirements or we're unable to determine 

whether or not they missed that license requirements. Is there 

going to be a transition period or how do we make sure 

students comply?

MR. MARTIN: As far as the transition, as far as the 

language goes, the Department has determined to stay with the 

language in 32. However, we we will be, we are amenable to a 

transition period. So, we can discuss that, what type of a 

transition period that would be. And if somebody wants to 

suggest something, then we would have to obviously have a 

discussion on that. But I don't want to put any words in 

anybody's mouth, so I'm not going to do that. But I will open 

the floor for any suggestions about what type of a transition 

period might be in order.

MS. JEFFRIES: Okay. Thank you. I want to note that 

Barmak Nassirian is at the table this morning representing 

service members and veterans. And with that Barmak, your hand 

is up.
Committee Meetings - 03/18/22 12

MR. NASSIRIAN: I certainly defer to the Department's 

judgment on what it wants to do on 32. But I do think 

Emmanual's concern question number one, it is going to prove 

vexing, and Carolyn and I don't have any pride of authorship 

in the language we submitted. Quite candidly, that language 

was , the work was the product of very hard work by other 

people who know a lot more about this stuff. But that language 

would have handled all of these issues with regard to interstate movement, with regard to changing state standards, that 

even if the student doesn't move to go to changing state 

standards, that could alter eligibility of programs because it 

tied eligibility to the bulletin year. So, to whatever extent 

the Department decides to take another look at some point, I 

would encourage it to do that. I would also point out that to 

the extent that you do decide to keep the existing language in 

32, you need to alter 443 C because 443 C doesn't make any 

sense anymore in light of the in light of the changes that are 

in the current draft, just as a conforming change. Thank you.

MS. JEFFRIES: Okay. Thank you, Barmak, for that. 

Jessica, you are up next.

MS. RANUCCI: Thanks. I'd like to reiterate the point 

that I made in a different section, but I think it also 

applies here that I think we all have an interest in not 

straining students mid-program who are unable to finish with 

Title IV. And I think that the concerns that are raised by 

Emmanual, obviously there are institutions size concerns, but 

I think those same concerns apply to the student, which is if 

this were to apply on day one and if it were to be judged in 

sort of this moving target as a student moves through the 
Committee Meetings - 03/18/22 13

program, that there really opens up those difficulties for 

institutions. And how do you do this in difficulty for 

students and maybe their life circumstances would somehow 

render them ineligible for Title IV. And so I think that the 

proposal from Barmak and Carolyn or some other language that 

would sort of set this at a point in time at enrollment is 

important and that it's on the one hand, it preserves the 

important consumer protections that I understand are behind 

this from the Department's perspective, and that we don't want 

students to go into these programs without understanding the 

employment and licensure opportunities, but on the other hand 

would protect students in that they wouldn't get stranded mid 

program and so , I agree. All that to say, I agree with 

Emmanual, but I think it's also an important point from the 

other side.

MR. MARTIN: As far as implementation. I mean, 

generally with something like this, it would be, you know, we 

would have to determine the implementation rules. So you're 

saying it would be applicable, make it applicable to students 

who enroll in a program on or after a certain point so that it 

wouldn't pertain to students who are currently enrolled in the 

program, correct?

MS. RANUCCI: Right. I think there's two separate 

problems that Emmanual raised and that would solve one of 

them, from my perspective, which is the transition period. 

Yes, I think it should not cut off aid for students who were 

mid program as to the effective date. I think as to the other 

a problem it's a problem that would exist in perpetuity that 

Emmanual is describing about students who, for example, move 
Committee Meetings - 03/18/22 14

mid program. And I think that that needs a different fix that 

wouldn't necessarily be fixed by the effective date. That 

would tie the consideration to a point in time that is closer 

to enrollment so that if life circumstances change, that those 

students would not be stranded. Emmanual, you might have a 

different perspective, but that's how I see it.

MS. JEFFRIES: Thank you, Jessica. Emmanual.

MR. GUILLORY: Jessica, I agree with your 

perspective. And I just I wanted to uplift in the comment 

because I know that everyone who's watching can't read the 

comments. But my colleague Kelli, I think she made a good 

suggestion in grandfathering the students who are currently in 

the program. So they're grandfathered with the current 

regulations and then whatever is new, which would, I guess go 

into effect July 1st of 2023, there would be, you know, maybe 

a year to come into compliance with the new standards or some 

sort of transition period to then make sure that the next 

enrolling class into the program, institutions abiding by 

these new rules, they know exactly what they need to do and 

everything is pretty clear. But grandfathering the current 

students is students who have already been accepted to some of 

these programs. I think it's a wonderful idea. So, I wanted to 

to lift that up.

MR. MARTIN: Yeah. I think we can, I right now 

certainly agree that it would not affect any students who are 

currently enrolled in programs that would be students who

enrolled on or after if we said the effective date of the 

rule. But or is this suggestion that even if we did that, that 

it would be effective on or after a certain date, I mean, the 
Committee Meetings - 03/18/22 15

implementation date, which would normally be July 1 of a given 

year that there would be a time period after that for, before 

it would be implemented. Is that the suggestion?

MR. GUILLORY: Yeah. So, I would say if this is 

implemented July 1st, 2023, which that's the goal. Right. So,

you're going to get these regs out by November 1st of this 

year, ideally [inaudible] July 1st, 2023. Well, by that time, 

students have already been accepted for the 2023, 2024 

academic year, ideally, or at least some students have already 

been accepted for that program. So, it seems to make the most 

sense that this would kick in for those students who are being 

accepted for 2024, 2025 academic year because 2023 2024 would 

have that process is already happening.

MR. MARTIN: Okay. Alright. So, we give them another, 

it would give them another additional year to do that. I do 

want to clarify one thing. As far as location goes, I wanted 

to point out that we do have, and this came from our our rules 

that we did in all these years escaped me, but the last time 

we negotiated rulemaking, we did distance innovation, and that 

was in, I believe it was in ‘18 or ‘19. Anyway, I wanted to 

point out in 600.9 (c)(2) the and read this language to you. 

For purposes of this section, this is in state authorization, 

just to clarify there. For purposes of this section, an 

institution must make a determination in accordance with the 

institution's policies or procedures regarding the state in 

which the student is located, which must be applied 

consistently to all students. The institution must, upon 

request of the Secretary with written documentation, provide 

the Secretary with written documentation of its determination 
Committee Meetings - 03/18/22 16

of the student's location. An institution must make a 

determination regarding the state in which the student is 

located at the time of the student's initial enrollment, and 

in addition, in an educational program, and if applicable upon 

formal receipt of information from the student in accordance 

with the institution's procedures that the student's location 

has changed to another state. So, we require this to be, we do 

give its institutions a fair amount of latitude in making this 

determination. They just have to have a policy or procedure to 

make such determination. So, I want to point that out. As far 

as offering an additional year as you as you suggest, let me 

ask before we move on what kind of support there is for that 

around the around the table in general? Can I just ask for 

brief comments on whether or not the rest of you would be 

amenable to something like that?

MS. JEFFRIES: Greg, do you want comments, or do you 

want like a pseudo temperature check?

MR. MARTIN: Just any comments people have?

MS. JEFFRIES: Okay. Alright. Barmak.

MR. NASSIRIAN: I would certainly support the 

transition period, but I also want to point out again that 

even a transition period doesn't address the issue that the 

Emmanual raised because the student can be based on the 

definition of location from your state authorization rate, the 

student can be located somewhere where the program does meet 

the necessary state criteria and the student could move to a 

state where the program does not meet the criteria. And at 

that point, the program would become ineligible, and the 
Committee Meetings - 03/18/22 17

student would become ineligible midstream for Title IV. So you 

really do have a wrinkle here that I would again suggest you 

resolve by dealing with at least by limiting the the licensure 

or the requirements of section 32, by tying it to the to the 

start of the program, that when when somebody starts in a 

program that is eligible, that the application of that 

potential location change does not alter that, at least that 

individual students continue their eligibility for aid. That's 

going to be a problem. People moving, as you know, Greg, in 

our area, it's really easy to move out of Maryland, into 

Virginia, into the District so there are plenty of folks who 

could easily change change their state, their location from 

one state to another.

MS. JEFFRIES: Greg, you're on mute if you're 

speaking to the committee.

MR. MARTIN: My mistake. I'm very sorry about that. 

Hold on one moment, please. So going back to the definition 

where we say an institution must make a determination 

regarding a state in which the student is located at the time 

the institution's initial enrollment in the program. So, we 

don't view it as something where if the student changes 

location during the program, that it becomes ineligible. I 

want to point that out. As far as a transition period is 

concerned, I, we, just hold on one second here, just bear with 

me one moment, please.

MS. JEFFRIES: Sure, no problem. We could take a 

couple more comments if you'd need a minute.

MR. MARTIN: Yeah, go ahead. That would be fine.
Committee Meetings - 03/18/22 18

MS. JEFFRIES: Alright. Okay, Jessica.

MS. RANUCCI: Thanks. I hear what you're saying, 

Greg, but I just looking at the chart, it looks like Barmak 

just said something and me and Emmanual and then Debbie said 

something in the chat, and I think Kelli agreed and Carolyn 

and Ernest, Beverly. So, I think there is large and Brad 

sorry, not to leave you out Sam, there is a lot of support 

here for clarifying that language, and I think it sounds like 

there may not be a substantive disagreement with the 

Department, but I think that everybody here thinks the same 

thing, which is this should be determined at the time of 

initial enrollment. And to the extent that language isn't 

clear, perhaps it could be more clearly worded. As to the 

transition period, I'm not opposed to in principle Emmanual, 

but I think a lot of this look that I would be most concerned 

about or not really on academic year schedules. And so, it 

seems to me I would want it to be the shortest amount of time 

that you actually need. I would think students who are 

accepted as to July 1st would all be enrolled by October 1st. 

I don't I don't do your job. I'm not exactly sure what date 

would be reasonable. And so, it seems to be like shorter than 

a year with preserved needs for schools that are on a more 

traditional academic year cycle, while not allowing schools 

that are not to evade this. So.

MS. JEFFRIES: Thank you, Jessica. Greg, I see you're 

off mute. Are you ready or you want more comments?

MR. MARTIN: You can say more comments.
Committee Meetings - 03/18/22 19

MS. JEFFRIES: Okay. Alright, great. Emmanual, you're 

up next.

MR. GUILLORY: I want to respond to my colleague, 

Jessica. I completely agree with you and what you said. And 

you actually took the words out of my mouth in a lot of ways, 

and it doesn't necessarily have to be an entire full year per 

se. It's just a matter of having time for students who are 

then being admitted into the program for the next semester or 

academic year, or however that institution kind of sets that 

program up to then be held accountable to this standard. And 

it's not for students who have already currently been enrolled 

for this award year or academic year or semester or whatever 

the case may be, but actually having a buffer period to just 

ensure that compliance is, and everything is communicated 

clearly. Just to reiterate, Jessica, if that is the case for 

the Department, that it is based on initial enrollment, and it 

should just mirror that language should be mirrored more so 

here, at least they're being consistent because it arguably is 

not consistent here. So.

MS. JEFFRIES: Thank you, Emmanual. Greg I'm not 

seeing any other hands. There are a couple negotiators who did 

put in the chat that they were in support. I specifically saw 

Brad and Kelli plus one on the transition in the chat. There 

may be others. Go ahead, Greg.

MR. MARTIN: Yeah, I'll speak to the issue of 

location. So, you know, in 32 we say the student in the state 

in which the institution is located or which the student is 

enrolled by the institution is located, and the definition of 

that is in state authorization. So that is our definition, and 
Committee Meetings - 03/18/22 20

it is applicable across the program. So, it absolutely does 

apply. So, it's sort of like if we reference, if we say 

something like, you know, eligible student. Well, we actually 

have a definition of an eligible student that that is 

applicable throughout our regulations. The same thing here. 

So, it is based on your initial determination of where the 

student is located, and that's according to your your policies 

and procedures that you have in place to determine where 

student is located. We don't prescribe that. So, I just want 

to clarify that. As for transition, what's being asked here is 

for a transition more than just it would apply to new students 

enrolled on or after effective date. I need to think about 

that. You know, Cynthia, could you give me just give me 5 

minutes offline.

MS. JEFFRIES: Sure. Okay. Adam, we'll get to you, or 

did you want to say something to Greg before he takes his?

MR. WELLE: Yeah, I was just hoping he could repeat 

that comment just from a minute ago, about 32. He I believe, 

Greg, you stated that the reference in 32 to the state in 

which the student is located references another definition 

within the reg. And I was wondering if you could just point us 

to that definition. And I think you were implying that 

definition solves this issue of the assessment of the student 

state is seeking at the time of initial enrollment. So, I'm 

just wondering if you could clarify that or if I'm getting 

that wrong?

MR. MARTIN: No, that is the definition found in, and 

I'm having a difficult time, hold on, let me just ask my-
Committee Meetings - 03/18/22 21

MR. WELLE: And maybe you could find it after the 

break that you could give- [interposing]

MR. MARTIN: It's 600 point, it's in 600.9 

[inaudible] I'll see if we can maybe even pull it up on the 

screen. Just give me the time to go back and look.

MS. JEFFRIES: And Steve has his hand up so maybe he 

can help.

MR. FINLEY: Oh, yeah. I was just going to address 

what Greg's saying. There is an interplay between this 

provision and the state authorization requirements in 600.9. 

Under 600.9, institutions are supposed to keep track of where 

students are during the course of their enrollment. But the 

issue here is, I think the one Barmak raised is to whether the 

student's eligibility for the program would be based on the 

student's location and the institution's location at the time 

of enrollment. And I think that's what we're going to try to 

clarify in our offline discussion.

MS. JEFFRIES: Okay. Thank you, Steve. Greg, we'll go 

ahead and take that break for you if.

MR. MARTIN: Okay. Yeah, before we go, I just want to 

point out to everybody before we go to break, I just I have it 

in my chat, but I'm having difficulty with my screen. So, I 

did what we always do now is just simply Google it on your 

phone because the phone is so much quicker than anything else. 

So yeah, it is in 600.9 C. And that is the state authorization 

requirement. So, I just want to point that out. But yeah, 

we'll go offline for a few minutes and thank you very much.
Committee Meetings - 03/18/22 22

MS. JEFFRIES: Emmanual, I'm going to ask you to hold 

your comment. The Department has asked twice to go offline to 

do some 5 minutes or so work on this. So, if you could just 

please hold your comment until they return, unless it's 

something new.

MR. GUILLORY: Very quick. Maybe we should.

MS. JEFFRIES: Is it new?

MR. GUILLORY: It's new.

MS. JEFFRIES: Okay.

MR. GUILLORY: Maybe we should just reference that 

here, like just provide a reference to that here. And I think 

that because you removed it, just you're trying to address 

something else and you removed it, but readding that somehow 

would maybe make that clear for institutions to know that it's 

based on the location.

MR. MARTIN: So, you want the reference to 600 point 

to 600.9 in the text?

MR. GUILLORY: Or you could just say initially 

enrolled. Students initially enrolled by the institution are 

located or something like that.

MR. MARTIN: We'll consider putting in a reference to 

600.9, I think we can probably do that.

MS. JEFFRIES: Okay. Alright. Thank you, Greg. We'll 

go ahead and take that break now. Brady, get the room set up 

for them. If we could go off the broadcast that. Okay. It 
Committee Meetings - 03/18/22 23

looks like everyone is back. I'm going to turn it over to 

Greg.

MR. MARTIN: Thank you, Cynthia. And I thank you for 

your indulgence with the break. And I was having trouble with 

my computer and different different things on top of each 

other. So, I just went out and got back in again. So, that 

definitely helped. And so, I really appreciate that. So, for 

32, we we will certainly incorporate a reference to the 600.9 

there. So, to make it clear that it is the locations of 

determination at the time of enrollment by the institution in 

accordance with its procedures. And as far as transition goes. 

At this time, all I can commit to, we will certainly take a 

look at it, but all I can commit to at this time is that we 

would not, upon implementation date, it would be only for 

students who enroll in the program on or after the 

implementation date such that it would not affect any students 

who were currently enrolled in the program and would not 

result in any loss of eligibility for student who was enrolled 

at the time. As far as beyond that, an additional transition 

period, I am not in a position to commit to that right now.

MS. JEFFRIES: Okay. Thank you. Thanks, Greg. Kelli 

Perry is back at the table for private nonprofits. Kelli.

MS. PERRY: Thank you. So, I have a question about 

the definition 600.9. Because I need to make sure I'm 

understanding it correctly because it does talk about the 

student’s initial enrollment, but it also goes on to talk 

about upon formal receipt from the student, that the student's 

location is changed to another state. So, and it also 

references policies and procedures. So, is this saying that if 
Committee Meetings - 03/18/22 24

you make reference to 600.9 that if a student formally 

notifies an institution that they're moving to another state, 

that that institution then needs to obtain licensure in the 

state that the student is moving to?

MR. MARTIN: I don't believe that is what it means. 

I'm going to ask my colleagues to confirm that with me. So, if 

you just hold on a moment, I'll try to get some confirmation 

on that. You're talking about in the definition, an 

institution must make a determination regarding the state in 

which the student is located at the time of initial enrollment 

in the educational program, and if applicable, upon formal 

receipt of information from the student in accordance with the 

institution's procedures that the student has changed to 

another state. I don't believe we would see that as 

necessitating having to in the middle of a program, change 

eligibility. This more has to do with the procedures of the 

institution. And if the student at the outset of the program 

informs the student that he or she is is changing states. But 

let me get some I know that that language does seem a little 

bit amorphous. So let me get some let me get some more 

clarification on that.

MS. PERRY: Thank you.

MS. JEFFRIES: Alright. I'm not seeing any more 

hands, Greg. With questions. So. How do you want to proceed?

MR. MARTIN: Okay. Well, let's proceed to, that's 

what I was trying to get some clarification. Here we go. Hold 

on one moment, please.

MS. JEFFRIES: Sure. No problem.
Committee Meetings - 03/18/22 25

MR. MARTIN: Okay. Okay, bear with me one moment. I'm 

going to. Steve, do you have any comment on that language?

MR. FINLEY: Yeah, we're still clarifying. So, under 

600.9, institutions are expected to remain updated if they 

learn that the student has moved to another location. And that 

would at least trigger a conversation with the student as to 

whether the program is in which the student is enrolled meets 

the licensing requirements of that state. I don't think it's 

supposed to trigger a loss of eligibility under this related 

provision, but we're waiting for confirmation on that. But it 

does trigger an updated conversation with the student, which 

is consistent with what's already in line with 600.9.

MS. PERRY: But I think the way that it reads, it 

would trigger an eligibility. I mean, obviously, you're the 

one that has to make that determination. But the way that it 

reads is that if a student notifies an institution which they 

are required to do and they then say, okay, so let's say the 

institution moved to Kansas or the student moved to Kansas, 

and the institution doesn't meet the legislative requirements 

in Kansas. So that student then ultimately becomes ineligible 

because we can't provide that service.

MR. FINLEY: And that's what we're going to try to 

clarify in this discussion. So, we understand the concern 

that's being raised.

MR. MARTIN: Right. I'll just beg everyone's 

indulgence for, I hate to call another break just after I 

called a break, but that's not something you really want to do 

at this point. But.
Committee Meetings - 03/18/22 26

MS. JEFFRIES: But I mean, if you need it, you need 

it, Greg. 

MR. MARTIN: Yeah, you know what? Let’s just go, I 

hate I don't mean to do this, but could I go offline for just, 

I just need about not maybe just call it 5 minutes, that's 

all.

MS. JEFFRIES: I do want to bring to your attention a 

comment in the chat that Adam Welle is proposing that we come 

back to this once you've come up with a language that 

incorporates the language in 609.9. Just so that you're aware 

that that comment is there. Okay?

MR. MARTIN: Thank you.

MS. JEFFRIES: Mm hmm. Okay. So, Brady, do you want 

to and we'll go off the livestream, please. Okay, welcome 

back. It looks like everyone is back with us. So, Greg, I'm 

going to turn it over to you.

MR. MARTIN: Thanks, Cindy. And I again, thank 

everybody for their indulgence and for whatever negative

effect this process might have on my nerves. It does make me a 

lot sharper person in the end, I think. So, it's good. It 

certainly keeps you on your toes in thinking. So we're going 

to bring up some new language here but I want to make it clear 

that it is not the Department's intention to require that once 

the determination is made at the time of enrollment, it is not 

our intention to require after that the institution account 

for changes in location that occurs subsequent to that 

determination in accordance with the institution's policies. 

So, I'm going to ask my colleague Vanessa to bring that 
Committee Meetings - 03/18/22 27

revised language up on the screen for you. So, what we're 

proposing. In each state in which the institution is located 

or in which the student is enrolled by the institute or in 

which students enrolled by the institution are located as 

determined at the time of initial enrollment, in accordance 

with the requirements of 34 CFR 600.9 (c)(2) the institution 

must ensure each program is eligible for Title IV program 

funds. So, you can see here that we are so there's no 

confusion that we are restricting this to the determination 

made at the time of initial enrollment by the institution in 

accordance with the institution's procedures and policies and 

procedures for doing so. And that what is in three that we had 

to put in there for authorization for state authorization 

purposes that involves the formal receipt of information that 

students change location is not applicable in in this in in 

32. And so, with that I will, like we can take any comments 

related to this particular provision and then I want to move 

to a consensus vote.

MS. JEFFRIES: Sounds good, Greg. Thanks. So, the 

Department is open to any comments on the change in that 

particular section that they just discussed. And then after 

that, we will move to consensus.

MR. MARTIN: Before that, I want to thank the 

negotiators for for reviewing the reg and bringing to our 

attention the inconsistency and thank you.

MS. JEFFRIES: Thank you. Alright. So, Greg, I'm not 

seeing any hands, so.
Committee Meetings - 03/18/22 28

MR. MARTIN: Okay, we can move to a consensus vote on 

issue paper six.

MS. JEFFRIES: Okay. So, we're going to go ahead and 

take the consensus check on issue paper six, certification 

procedures. Please hold your thumbs up. We will call out each 

individual vote as we move on. And as in the previous past, we 

will ask any dissent to please clearly list your serious 

reservation, clearly list it, and briefly offer what it would 

take to get you to consensus. So, with that, could I please 

see a show of thumbs? Alright. Jessica is down. Ernest is 

down. Barmak is up. Carolyn is up. Anne Kress is down. Kelli 

is down. Sam Veeder is sideways. Jamie is sideways. Amanda is 

down. Brad is down. Adam is thumbs up. Debbie is thumbs up. 

Marvin is sideways and Beverly is sideways. Okay. So, we have 

Jessica, Ernest, Anne, Kelli, Amanda, and Brad that 

demonstrated dissent. So, I'm going to start with Ernest. If 

you could please clearly articulate a list of what your 

concerns are and what it would take to get you to consensus on 

this.

MR. EZEUGO: For sure. So, I want to start by saying. 

I really greatly appreciate a lot of the things the Department 

is trying to do in this reg. I strongly support the consumer 

protection language that's been offered up in this document. I 

think the fix to 32 is really important. You know, I even 

appreciate a bit of explanation that was given on the 

transcript withholding piece yesterday. I have to be honest in 

that there were conversations and things brought up in the 

chat afterwards. And generally, I feel like and I can 

understand why this is the case, but generally I feel like we 
Committee Meetings - 03/18/22 29

really tried to rush through the transcript withholding piece, 

which honestly I found a little bit concerning since I 

mentioned that that was something of great importance to my 

constituency, but then also to me personally. Look, in full 

disclosure, I am almost, I'm pretty confident maybe the only 

person in this room who does not have a postsecondary 

credential in significant part because of the conflict that

transcript withholding played in my life. And while I 

appreciate and I think the language offered by the Department 

and I would even urge them to consider starting at that point 

covers a lot of the concerns and issues around this, I am 

still struggling to understand where the Department doesn't 

have the authority on transcript withholding to act on such 

withholding as part of the PPAs that it does on, say, 

[inaudible] happened last session. If the question is about 

like what the legal Federal interest is in doing this, I would 

turn back point cite you know the CFPB's comments on this. We 

know that schools, we know that institutions like transcript 

withholding in part because it helps lock students to those 

specific institutions. I'm pretty sure we've even seen 

examples of where transcript withholding has been used to push 

students into institutional loans to continue their education 

at an institution or private loans that have less safe terms 

terms of Federal student loans. Ultimately, I still feel like 

that undermines the government's investment in these students. 

I mean, when an institution has the latitude to lock a 

student's entire academic history and record and their 

educational progress away and, in some cases, even conceal the 

fact that a student has done everything necessary to earn a 
Committee Meetings - 03/18/22 30

degree, that just to me it feels like grounds to take stronger 

action on for personal reasons.

MS. JEFFRIES: Ernest, you have 30 seconds.

MR. EZEUGO: Thank you. For the reason [inaudible] 

I've heard from my students and just kind of legal reasons. 

It's absolutely a tactic that I think that bad actor 

institutions, to the point that we're all trying to solve, can 

use to hide wrongdoing. Plus, I would add that, you know, it 

definitely encourages students to pay back these private 

institutional loans rather than Federal loans, which also, I 

think, kind of serves the kind of contrary to the Federal 

interest as well.

MS. JEFFRIES: Earnest, your time is up.

MR. EZEUGO: That's all I would say. Thank you.

MS. JEFFRIES: Thank you. Alright. Anne, you are 

next. Please clearly articulate a list of your concerns and a 

resolution that could get you to consensus.

DR. KRESS: Sure. Thank you. And again, I support a 

lot of what's going on in this issue paper. But the two-year 

colleges, community colleges concerns are with number 26 and 

the licensure program length issue. As I stated earlier, my 

real concern is that I understand the Department has issues 

with the length of some of these professionally licensed 

programs at the state level, but that's really where this 

needs to be directed. As written, it's going to punish 

students who have no choice over what state that they take 

these license programs in. The students we're talking about 
Committee Meetings - 03/18/22 31

can't simply pick up from one state and move to another in 

order to engage in a shorter program length that meets the 

Department's expectations. So, a few solutions to this 

language. One would be to revert to prior language. Another 

would be simply to revert back to saying greater rather than 

lesser in the text, which was changed in this iteration. And 

then finally, something to think about since the goal seems to 

be to motivate states to shorten the program length. And I get 

that, and we support that. But to give a transition period 

that would allow for all of the steps that need to occur for 

program link to be shortened to take place, recognizing that 

you have state actors, board actors, institutional actors, and 

that we would want students to be grandfathered in during that 

process. Again, completely understand the desire to have as 

efficient and expedient program lengths as possible. But as 

written right now, the folks will be punished if that doesn't 

happen. It isn't the individuals who are designing the 

programs, it's the students who are in them.

MS. JEFFRIES: Thank you, Anne. Next. Kelli, can we 

get to a list of the areas that are of concern to to you as 

well as what it would take to get you to consensus?

MS. PERRY: Sure. Thank you. I'll echo Anne's 

comments in 26. I think the change from greater to lesser was 

a concern, is a concern, of our constituency. And then the 

second thing is the language of 32. We were able to get on 

board with what was proposed by Carolyn and Barmak and what I 

was hoping that the Department would consider that language. 

The language as written does not work and we would need the we 
Committee Meetings - 03/18/22 32

would need romanette three removed from that from that 

language.

MS. JEFFRIES: Thank you very much, Kelli, appreciate 

it, Amanda, you're next.

MS. AMANDA MARTINEZ: So, I would like to align the 

issues of paragraph 26 the issues with paragraph 26 as 

eloquently already described, but I would say that I think the 

Education Department's policy goal here to ensure programs 

show a reasonable relationship. I think the session two's 

language, while I don't have the solution to the problem or 

what specific language I would be looking for, I just think 

that section three is language in paragraph 26 ultimately puts 

unintended consequences on students. And I don't think that's 

necessarily the solution or the intention of the Department. I 

think they're trying to solve a problem, which I think there 

is a problem here. I think they have an interest in ensuring 

programs like teacher programs aren't going to prevent 

providing too many hours that are unnecessary. So, I think 

that there's a true problem there. I think it really needs, 

the Department should go look back and try to be creative in 

whatever new solution that they're proposing. I don't have the 

answers to that, but I do think section two language is a bit 

more, it doesn't put the harm on students there and it really 

targets the clock hours. But ultimately, I'm not an expert 

there. I just do think that 26, as it reads now, is not is not 

the way to go forward. Also, paragraph 32, I strongly support 

paragraph 32. That's not what I have issues with. I think 

supporting student of student consumer protection is is well 

needed and it's lacking in our current higher education 
Committee Meetings - 03/18/22 33

Federal system. So just leaning on institutions and across the 

board states to to go to bat for students, I think states have 

a role here and just simply simply leaning on institutions to 

do that and trusting them. I think they've proven time and 

time again that we cannot trust them, at least from a student 

perspective, and even more so from students who are 

historically excluded from higher education. We really can't 

trust their institutions because they really weren't made for 

them. So, ensuring that the bar is raised and that we empower 

our states who want to go to bat for students, especially 

historically marginalized, I think that's a great path forward 

in the right direction. And the Federal Education Department 

has a role there. So, I strongly support that. That's not 

where my dissent is. My last dissent is really with paragraph 

33. Again. It's a good attempt and I really appreciate your 

attempts here and working, working with what you have. I just 

think the legal reasoning, we have to go back. I would really 

strongly urge you to go back and rethink your your legal 

strategy here and try to try to be more look at different 

options versus maybe a limited, narrow scope.

MS. JEFFRIES: Thank you, Amanda. Brad, you’re next. 

Need your list of concerns and your potentials to get you to 

consensus.

MR. ADAMS: Yes. And thank you. And I sent in 

comments in week two and so I'm going to reference the 

sections where I've got problems. But really to get me the 

consensus, it would be going to that language that I've 

already sent, and I won't reread that to everybody on the 

committee. So, in 668.13 3 (c)(1) romanette one F, where it 
Committee Meetings - 03/18/22 34

gives the Secretary complete discretion to put anyone on a 

provisional certification for any reason, that was that was 

one of our concerns. Also, I second, what Anne and Amanda have 

both said around 26 on the state hour cap issue we really 

thought we should just leave it as is and all the changes we 

think are not necessary. Lastly, the entire provision within 

32, we've got concerns with I think the pre-accreditation 

issue got solved, although I've got to double check that. But 

the whole reciprocity arrangement issues that we've been 

discussing and consumer protections we've got problems with. 

So those are the main three areas of concern. Thank you.

MS. RANUCCI: Those that have been raised. But I just 

want to state them much more specifically so that I hope the 

Department understands this is not a vote that I want to be 

making because I really think that they're important things in 

here. I would specifically point to this state authorization 

and consumer protection language. I really applaud the 

Department for that. I do not want to down vote a proposal 

with that language in it, but I'm doing it for two reasons. 

One is on 26, there are two separate issues, one of which was 

very clearly articulated by Anne and Kelli. And I think it's 

not a deal breaker for me. I understand your position. The 

issue that's a deal breaker for me is the Department, in 

deciding that these programs should be ineligible instead of 

just excluding students from eligibility, has designed a 

method where students come into a program that they cannot 

finish the Title IV, where the Department knows that the 

institution knows that the students aren't going to understand 

that. And you said yesterday there's no other place in the 

Title IV program where that happens for students. And I just 
Committee Meetings - 03/18/22 35

cannot support a proposal that sets a precedent that we're 

going to have programs that we know from the outset can only 

be partially funded by Title IV. And I hope the Department 

really takes a look at that again, because I just I don't 

think anyone here thinks that is in the student's best 

interest. I would be fine reverting to the session two 

language. I also, to be clear, am fine with the Department's 

stated reasoning for that, which was that non-Title IV 

students should be able to participate in those programs. 

That's fine. My concern is with Title IV students who can 

start but not complete with Title IV. As for the transcript 

piece of the second thesis. So sorry. Just to be clear, I 

would be fine. Reverting to the second proposal. I think on 

the transcript withholding piece, I echo Ernest and Amanda's 

position and I was disheartened by, I think that the legal 

justification that seems inconsistent with what the Department 

has done before and the lack of fulsome discussion about it. I 

appreciate that the Department is taking steps to solve this 

problem, but I do have concerns that the language in 33 is 

potentially worse than not having language at all, to the 

extent that it's a tacit approval of all other transcripts 

withholding. And I would hope that the preemption arguments 

would lose, but I do think that it would pose preemption 

problem. Thanks.

MS. JEFFRIES: Okay. Thank you, Jessica. Did I miss 

anyone that dissented? I don't. Okay. So that concludes issue 

paper six certification procedures. We're now going to move on 

to issue paper seven, which is your final document on the 

90/10. So, with that, Greg, you want to start walking through 

that?
Committee Meetings - 03/18/22 36

MR. MARTIN: Sure. A couple of things here before we 

start with that. I am aware that there has been some language 

offered and some discussion involving A 3, revenue generated 

from programs and activities. What I'd like to do is walk 

through that. When we get to it, we'll walk through it and 

walk through the paper and then we'll be discussing these 

sections. And I know that Brad has some language, and I would 

ask him to discuss what he suggests there. At the end of the 

paper, if the Department has an offer of different language 

that I would put that up. But I think I'll walk through the 

paper first. But before we we do that, I want to draw 

everybody's attention to the fact that you do have appendix C 

in this round. So, you've looked at appendix C, appendix C to 

subpart B and I just want to introduce that briefly as that is 

the appendix C is the accounting protocol for how institutions 

are to actually calculate 90/10. So, what is in Appendix C is 

meant to reflect absolutely what is in the regulation. It's 

simply the protocol for actually doing the calculation. So. 

I'm not going to walk through every line item of it. Your 

advisor, David McClintock, who has a lot of experience in 

working with certainly current appendix C and has looked at 

the revised appendix C. has I know he has some comments he 

wants to make, and I want to give him the opportunity to do 

that. So, David, can I ask you, did you want us to put up the 

new appendix C for you? Is that what you intended? So, we can 

show when you discuss when you make your comments?

MR. MCCLINTOCK: Yeah. It might make sense to pull up 

maybe even the current version and people have it copy it. I 

assume you want to do it now. You know, appendix C wasn't in 
Committee Meetings - 03/18/22 37

the issue paper, so I wasn't sure when to ask the clarifying 

question.

MR. MARTIN: I think we could do it now, David, just 

because I want to get people aware of it. This is current 

appendix C. Did you have an old appendix C you wanted to show 

people?

MR. MCCLINTOCK: It was, Cindy circulated it to the 

group so we can only pull up one at a time, maybe pull up the 

old one and people have a copy of the current and we can do it 

that way. And some of it, Greg, I just want to make some some 

clarifications. I know you've been, the Department's been, 

making changes to many issue papers and working through 

things. So, I know there's been a lot to update in the if you 

could pull up maybe the the old appendix C that I sent around. 

Oh, sorry. I switched to suggestion.

MR. MARTIN: No, I wonder if Vanessa can pull up the 

old appendix B.

MR. MCCLINTOCK: And if you can just scroll down just 

a little bit, Vanessa.

MR. MARTIN: There we go. This is the current 

appendix C, just to be clear. Okay. Go ahead, David.

MR. MCCLINTOCK: So, yeah, no, that's fine. And just 

I just want to clarify. So, in the appendix C that was 

circulated as an update to the calculation, there's a couple 

of key differences, and I just want to make sure that they 

were not intentional and you will make the adjustments. So,

the third to last line and the chart we're looking at, it 
Committee Meetings - 03/18/22 38

refers to a revenue adjustment here. And in the updated charts 

in the appendix that was circulated, it seems to have been 

changed to refunds paid to the student. And the difference is 

if you received any funding or it's Federal or non-Federal

funding above the institutional charges, whether or not you've 

paid that money to the student, it does not get included in 

the 90/10 calculation. The way that it works. And I just want 

to make sure that's still the way you intend the 90/10 

calculation to work. So, it's not money paid to the student, 

it's the excess cash received. Is that right?

MR. MARTIN: That's correct.

MR. MCCLINTOCK: Okay. And then similarly, the new 

calculation does not have that line for the Title IV funds 

return due to the R2T4 the CFR reference there is to the 

refund calculations. And so, you'll be adding a line in there 

just to comply with the current calc because that [audio] 

Okay.

MR. MARTIN: Yeah, I'll take these, we do have our 

accounting expert who actually did the new appendix. So, she 

is monitoring this. So, as you go through these, Dave, Rhonda 

will probably be looking at this, I'll let you know, but yeah, 

continue.

MR. MCCLINTOCK: Okay. And again, I think they're 

unintentional changes. I just want to clarify it. I guess a 

suggestion or question I would have is having gone through 

90/10 calculations with schools, I think it would be easier 

just the way it gets tracked and record it to include all 

those Federal funds, even the new sources into a single 
Committee Meetings - 03/18/22 39

section. The new appendix C hasn't broken out into a couple of 

different categories. And the way schools are going to do the 

calculation and say, okay, here's all the charges that have 

occurred and start applying those Federal funds in order and 

breaking it out into two pieces could add some complexities. 

It won't change the rate. It just might make the calculation 

easier.

MR. MARTIN: Thanks.

MR. MCCLINTOCK: Yep. But I think those are really 

the two main clarifications. I just wanted to make sure that I 

understood.

MR. MARTIN: Thanks, Dave. I'll try to get some I'll 

try to get some some some feedback on that.

MR. MCCLINTOCK: Okay, Thanks.

MS. JEFFRIES: Okay.

MR. MARTIN: Alright. Vanessa, do you want to put up 

the language again? Thanks. Okay. So, we're looking at 668.28. 

This is non-Title IV Federal revenue or 90/10. And in A 

general here in (a)(1) romanette one, we have updated this 

language here to reflect the intent or updated the wording, 

rather to reflect the intent of the language. And you'll see 

here that this is for any, so in romanette one, for any audit 

submission for proprietary institutional fiscal year beginning 

on or after January 1, 2023, Federal funds are used to 

calculate the revenue percentage include total for the program 

funds and any other educational assistance funds provided by 

Federal agency directly to an institution or a student, 
Committee Meetings - 03/18/22 40

including the Federal portion of any grant funds provided by 

or administered by a non Federal agency, except for non-Title

IV Federal funds provided directly to a student to cover 

expenses other than tuition and fees and other institutional 

charges. We did correct that was originally books and 

supplies. And as it was pointed out, books are supplies may or 

may not be institutional charges. So, we had that discussion, 

I believe, at the last session. And so, we have cleaned up 

that language to make it consistent with the treatment of 

institutional and non-institutional charges. So, it would just 

be other institutional charges there. And moving on to A, see 

where we are here, (a)(2) romanette two A, we just fixed a 

typo here in the heightened as it changed to heightened cash 

monitoring. And in B, we have made some slight revisions to 

the language here for clarity. So, in B, for institutions 

under the reimbursements or heightened cash monitoring methods 

in 668.162 C or D 2, make disbursements to those students by 

the end of the fiscal year and report as Federal funds in the 

revenue calculations, the funds that the students are eligible 

to receive before requesting funds. So that was the some 

clarifying language made in that section. And the next change 

is in 5 on page three, so we'll go there. Thank you, Vanessa. 

And here we have added the word principal to clarify that it 

is consistent with current practices. So, this is revenue 

generated from institutional aid. And the institution may 

include the following institutional aid as revenue. For loans 

made to students and credited in full to the student's account 

at the institution and used to satisfy tuition fees and other 

institutional charges. The amount of principal payments made 

on those loans by current or former students at the 
Committee Meetings - 03/18/22 41

institution or rather that the institution received during the 

during the fiscal year. And I will stop there for now and 

entertain any comments or discussion about what we have 

discussed thus far.

MS. JEFFRIES: Thank you, Greg. Brad.

MR. ADAMS: Thank you. I've got just a couple of 

questions in here in one, romanette one. And I've asked this a 

couple times and we really do need to get an answer on it 

because the HEERF money is going to it could essentially run 

out past the effective date of this work or issue paper of 

July one of 23. We really need to know, is HEERF money 

considered Federal money?

MR. MARTIN: HEERF money is not counted under 90/10.

MR. ADAMS: Thank you. We would still like to see in 

that Federal Register a statement that basically says that any 

any new fund sources that occur during the year take effect 

for the institution in their next fiscal year following the 

publication in the Federal Register. Our concern is that if 

something like HEERF were to come up in the middle of the year 

and it was counted towards the 90 that we would not know that,

and it would impact us potentially negatively. So, I'll just 

leave that comment that was issued in week two as still there. 

I see Mr. Finley's hand up, so I'm going to let him speak now. 

Or actually, I'm sorry, the facilitator. I'll defer to you. 

Sorry.

MS. JEFFRIES: You're all good. It's alright. I'm not

territorial. So, go ahead, Steve.
Committee Meetings - 03/18/22 42

MR. FINLEY: I just wanted to maybe ask a clarifying 

question and then explain why I'm asking it. And the question 

is, when you're asking about HEERF funds and whether they 

count, are you talking about HEERF funds that were paid 

directly to the institution for the institution or HEERF funds 

that the institution received on behalf of its students that 

were used to pay fund to pay charges for those students to the 

institution?

MR. ADAMS: Both.

MR. FINLEY: I'm not clear whether the funds paid to 

the to the students that were used to pay student charges. I 

think we need to discuss internally whether those are 

accounted for 90/10 or not.

MR. ADAMS: Proprietary schools weren't allowed to 

use any HEERF money for institutional charges. So, I mean, I'm 

sorry for student credit balances.

MR. FINLEY: Okay, so that's not really an issue 

then.

MR. ADAMS: It's not an issue for us. No. Only the 

nonprofits got that opportunity.

MR. FINLEY: Yeah. Thanks, Brad.

MR. ADAMS: For that second question, you know, I've 

still got a little concern on the way the, I guess it is in 

I'm sorry two romanette two how it's worded there. Again, our 

main concerns are that we follow institutional policies around 

requesting funds and that we follow those policies. So, I 
Committee Meetings - 03/18/22 43

understand the comments that the Department has made in the 

past around what they perceive as gaming the system. But 

again, we want to just make 100 percent sure that if we're 

following our own institutional practices, just because the 

charge was eligible to be pulled down, we're not going to get 

dinged for not pulling the money down. Again, I've given you 

examples over the last two sessions where our fiscal year end 

quarter starts right before that fiscal year end. And 

administratively, it would be impossible for us to get all the 

money in by that fiscal year end within a day or two. And so,

I just we're still concerned with the wording here.

MS. MILLER: Brad, you have 30 seconds.

MR. ADAMS: So, you know, the Department, I don't 

know, maybe you can respond to my concern that should we add 

some language here about making it following institutional 

policies or normal course of businesses here that we should be 

able to be okay under two romanette two.

MR. MARTIN: All I can I say, it's not the 

Department's intentions to do a gotcha where a program start 

is right on that cusp and where it was it's not that. For 

instance, if it's the institutions policy to post 

disbursements and then draw. And that happens a couple of days 

later and put that in the next fiscal year. I think. I mean, I 

don't know. You know, I understand in saying you trust the 

Department's discretion is basically just saying that is a 

matter of trust here. We feel we need this in order to stop 

this practice of intentionally delaying those draws of funds 

in the next into the next year in order to affect the 90/10 

calculation. We would not be amenable to putting anything in 
Committee Meetings - 03/18/22 44

here that would inhibit our ability to do that. I hesitate to 

go in the direction of, you know, school policy, because some 

schools could conceivably hide behind that policy in order to 

continue doing the practice, continuing with the practice that 

we're seeking to end here. So that's our concern. I don't know 

if Steve has any additional comments on that, but I'll ask.

MR. FINLEY: I don't have anything to add right now. 

Thanks, Greg.

MS. JEFFRIES: Okay. Thank you. Before we move, 

David, to your hand, the advisor, I just need to make a couple 

announcements. Will Durden is at the table for community 

colleges. Emmanual Guillory is at the table for private, non 

private nonprofit institutions. Carney King has joined the 

table for students and student loan borrowers. And Jaylon 

Herbin appears to be at the table in place of Carolyn Fast. Is 

that correct? Jaylon. Okay. Alright. With that, Dave, take it 

away.

MR. MCCLINTOCK: Yeah. Greg, I just want to build on 

what Brad was saying just from an auditor perspective. And 

here's how I would envision evaluating this. The way it's 

written, it would be very difficult to determine if a student 

is meeting it or not. As an auditor and understanding, I think 

what the Department is trying to do. Schools have terms that 

begin throughout the year. Right. And have a pretty consistent 

timing of when they draw down funds. Do they wait two weeks 

after a drop/add period? Do they wait 30 days? So, I think as 

an auditor, we could establish what is their policy as far as 

when they draw down aid for a term and then comparing what 

they do at year end to those other processes, at least it 
Committee Meetings - 03/18/22 45

would give a benchmark as an auditor for something to compare 

it to. The way it's written, it would be difficult, I think, 

to determine.

MR. MARTIN: So Dave, if I hear you correctly, you're 

saying that if if institutional policy was such that they 

waited us to a certain point to draw the funds, as you pointed 

out, maybe to wait for an add/drop to be over or something 

like that could be considered, if, in following that policy, 

the draw was occurred in the next fiscal year, right? But 

you're saying would give you something as not or to a standard 

to apply it and to say that well, clearly, the institution 

applied it here, but here it's obvious that they went four or 

five weeks to get over into the next fiscal year, right?

MR. MCCLINTOCK: Yeah, I understand what we're trying 

to do is purely delaying drawdowns only to pass 90/10 and I 

understand the reasoning. The example is yeah, a lot of 

schools wait until the drop/add because otherwise you pay Pell 

to a bunch of students, and they change their enrollment 

status and you have to adjust it. So as long as they're 

following similar timing. I think it would meet the 

requirement if there's a little tweak to the language to imply 

that, I think it would really help as an auditor to understand 

it.

MR. MARTIN: Yeah, I can understand that concern. I'm 

trying to think of any way we can incorporate something that 

would address that. We're coming down to the wire here. I will 

take that back. And we probably will have a lunch because 

we're getting up to that hour. So so maybe I can take that 

back and see if we would be amenable to a change there to 
Committee Meetings - 03/18/22 46

clarify that without undermining the intent of the regulation. 

I can't promise anything, but I will take it back.

MS. JEFFRIES: Okay. Adam, you're up next.

MR. WELLE: Yeah. I was hoping to talk about A 5 at 

the bottom of page three. So, unless if there's more 

discussion on the topic that we're on right now, I can wait 

and let Brad speak.

MS. JEFFRIES: I'm not sure that we've gone that far, 

right? Brad, Brad, is your comment.

MR. MARTIN: No, we went to we went through A 5 I 

believe. So, comments on A 5 were applicable.

MS. JEFFRIES: Yep, I was on the wrong page.

MR. ADAMS: My comment is on three romanette three. 

So, I'm fine if Adam wants to jump to five, I'm good either 

way but I'm done with the subject we just talked about and 

I'll wait on that.

MR. MARTIN: I don't mind the jumping around. It 

doesn't bother me, we we covered all of it.

MS. JEFFRIES: Okay, so, Adam.

MR. WELLE: Sure. So. The state AG reps circulated a 

memo on this earlier this week. But I just want to say, if I 

do, I'm glad the Department inserted the provision around, 

including only principal payments. I think without that it 

would incentivize institutions to impose higher interest rates 

on these types of loans. And this is consistent with the 
Committee Meetings - 03/18/22 47

purpose of 90/10. We propose changes to this section to 

clarify that these institutional loans that are covered by A 5 

would include ISAs income share agreements that are offered by 

institutions. These income share agreements, these are 

financial products that defer a debt obligation. They create a 

debt based on payment of a finance charge over time. They 

should fall under this section for institutional loans. The 

CFPB, which enforces the Truth in Lending Act, which has 

provisions around private education loans like this, has taken 

this position. Other regulators have taken this position. The 

Department of ED recently clarified this position just a 

matter of a week or two ago. So, I think consistent with that 

income share agreement should be covered within this section 

regarding institutional loans to the extent those ISAs are 

offered by institutions their affiliates. I think that would 

be consistent and avoid confusion about how income share 

agreements are treated under this provision or the separate 

provision that the Department has proposed. I do appreciate 

the the intention of the separate provision, which we haven't 

gotten to yet on page four regarding income share agreements 

and that there's some consumer protections around those income 

share agreements. I would submit, however, that to the extent 

institutional loans are regulated by state law, it's not 

preempted by Federal law. These are not Federal loans. So,

state protections around deceptive practices, usury, state 

licensing, those are in place, Truth in Lending Act, those are 

in place for these types of loans. And so, you know there 

would be a lot of the consumer [inaudible] that are pretty 

minimal, that are identified in the separate section would be 
Committee Meetings - 03/18/22 48

covered by a Truth and Lending Act, the Dodd-Frank Law, other 

things like that. So, I would strongly urge the Department toMS. MILLER: Adam, you have 30 seconds.

MR. WELLE: -wrap the income share agreements, make, 

clarify that income share agreements are covered within 

section A 5. Thank you.

MS. JEFFRIES: Okay. Thank you, Will. Brad.

MR. ADAMS: If you want Dave to go ahead, he's got 

his hand raised. I'm okay with that.

MS. JEFFRIES: Okay. I thought. I'm sorry. Go ahead. 

Dave, I thought your hand was a residual.

MR. MCCLINTOCK: No, I'm sorry. I did think there, 

well, I have one clarification I just want to make two now. 

So, something that Brad said, proprietary schools currently 

were able for HEERF two and three if they participated with 

written authorization from students to use those funds to help 

pay down balances. So, the HEERF one was not the HEERF two was 

it's not part of 90/10 now because we're talking about in the 

future obviously for that inclusion. And then just to clarify 

as well, I think it's good the Department added the word 

principal to make it more specific. It's always only, our 

interpretation, it always has only included principal again 

because of the clarification of the institutional charges that 

are included. And an interest expense is not an institutional 

charge that can be incorporated in the calculation. But 

certainly, adding the word principal makes it even more clear, 

I would say.
Committee Meetings - 03/18/22 49

MS. JEFFRIES: Okay. Thank you, Dave. Brad.

MR. ADAMS: Alright. I'm going to ask a question on 

three, romanette three, and then I'm going to request a caucus 

to get us up through lunch, if that's okay. My question is 

around the fact that when Congress approved the bill to change 

the wording as part of COVID to change the wording from Title 

IV funds to all Federal funds to move to the 90, they didn't 

approve any changes for the 10, and I don't think that was 

their intent. And so, my question is really, what's the 

Department's interpretation? I know opening up this issue 

paper allows you to make other changes, but why we're taking 

out the components of three romanette three everything that 

we're deleting here, when I believe Congress's intention was 

to clean up the 90 side of the balance sheet? And then after 

you respond, Greg, I do want to request a caucus for the last 

10 minutes before lunch.

MR. MARTIN: Okay. I have no problem with the caucus, 

so we'll let the facilitators deal with that when it gets time 

for that. I do want to say before I respond to you, Brad, I do 

want to respond, we'll get to this, we just haven't got there

yet because we started with five and we did loans. But I do 

want to clarify that under section five, which is revenue 

generated from institutionally, we do address the income share 

agreements which are under five, romanette three. So, we 

haven't got there yet. So, I do want to point out that it is 

there. So back to your question, Brad. Why don't we remove 

those? Well, we go back to the spirit and intent of 90/10, 

which is that a schools programs be, and I'll let Steve to add 

to this, but that a school’s programs be of such quality that 
Committee Meetings - 03/18/22 50

students are willing to pay some cash for those programs so 

that it wouldn't just be Title IV funds that cover those 

expenses for those eligible programs. And that does key just 

to schools eligible programs that students are willing to pay 

for those programs and schools offering and for which they are 

receiving Title IV funds. This income is ancillary and not 

related to that principle. So that is why we in these 

regulations made the changes that we did in romanette three. 

Steve, do you want to add to that at all?

MR. FINLEY: No, I think that's in general. I mean, 

the Department took a look at at the current regulations on 

how the revenues were counted under 90/10. And we've looked at 

experience we've had over the years of areas where it seemed 

like some revenue sources were being created to count on the 

ten side. And we tried to evaluate, as Greg just mentioned, 

whether that was consistent with what we thought the purpose 

was for 90/10. So that's why you're seeing these proposed 

changes now and you know, I think that's it to explain where 

we're coming from.

MR. MARTIN: I don't want to impinge on the time Brad 

has for the caucus, so I don't know what the facilities want 

to do, but we could take questions certainly after lunch or 

however we want to.

MR. ADAMS: I think I've got some proposed language 

that we will discuss during the caucus that may give the 

intent that the Department is looking for there. And do I need 

a formally request to have the caucus for the video?
Committee Meetings - 03/18/22 51

MS. JEFFRIES: Yeah. Just hang on one second, Brad. 

Adam, can your comment wait till after lunch so that we can 

afford Brad the time that he requested for his caucus?

MR. WELLE: That's fine. I just want to clarify 

something on section five so that addressed Greg's comment a 

second ago. But I can wait till after the caucus.

MS. JEFFRIES: Okay. Alright. Great. Thanks. Yes, 

Brad, before we break the livestream, we need to have it on 

the record who will be in the caucus. Who you're requesting to 

attend the caucus. Then we will stop the live stream and Brady 

will finalize the setup of that caucus room and move everyone 

into it. Okay?

MR. ADAMS: Yes, thank you. I would like the 

representatives from service members and vets and then the 

Department negotiator, Mr. Greg Martin, to attend in the 

caucus. That's all I needed.

MS. JEFFRIES: Okay. So, do you want the alternate 

and primary?

MR. ADAMS: Yes, please.

MS. JEFFRIES: Okay. Is the Department okay with 

that?

MR. MARTIN: Yes. Brad, would you be okay if I 

brought counsel with me?

MR. ADAMS: Yes.

MR. MARTIN: Okay. So, add Steve to that, please.
Committee Meetings - 03/18/22 52

MS. JEFFRIES: Okay. So, add Steve to it. Alright. 

So, we have both the primary and alternate from the service 

members and veterans representatives, the Department's 

negotiator, as well as the Department's general counsel. So,

we can break live. We will take a lunch. We will come back at 

1 p.m. Okay? So, for the rest of you with that, I think we can 

go ahead and stop the live stream. Brady probably already has 

the rooms ready.
Committee Meetings - 03/18/22 53

Department of Education, Office of Postsecondary Education

Zoom Chat Transcript

Institutional and Programmatic Eligibility Committee

Session 3, Day 5, Morning, March 18, 2022

From Kelli Perry - (P) Private Non-Profits to Everyone:

I would suggest the students in current programs are 

grandfathered with only the disclosure requirements currently 

in place.

From Adam Welle, State AGs (P) to Everyone:

I believe the language in (32) is clear enough that it 

concerns either the state in which the institution in located 

or the state in which the student is enrolled.

From Laura Rasar King (A) Accrediting Agencies to Everyone:

+1 Barmak

From Anne Kress (P) Comm Colleges to Everyone:

+1 Kelli I think students impacted by 26 also need to be 

grandfathered in

From Jamienne Studley-Accrediting Agencies (P) She/her to

Everyone:

+ Barmak and Emmanual to look closely at this issue and 

conformation with other related rules

From Sam Veeder (P) FA Administrators to Everyone:

+1 Kelli
Committee Meetings - 03/18/22 54

From Debbie Cochrane (P), State Agencies to Everyone:

I would support changes to (32) that clarify that the 

students' enrollment (and associated licensure/certification 

requirements) is determined at the point of initial 

enrollment. If a student moves mid-program to a state in which 

the program does not meet requirements, the institution may 

not know that and certainly couldn't control that.

From Kelli Perry - (P) Private Non-Profits to Everyone:

+1 Debbie

From Carolyn Fast (P) Consumer Advocates/Civil Rights to

Everyone:

+1 Jessica

From Ernest Ezeugo (P) Students and Student Loan Borrowers to

Everyone:

+1 Jessica

From Carolyn Fast (P) Consumer Advocates/Civil Rights to

Everyone:

+1 Debbie

From Ernest Ezeugo (P) Students and Student Loan Borrowers to

Everyone:

+1 Debbie's comment in chat.

From Adam Welle, State AGs (P) to Everyone:

Also +1 to Debbie's comment
Committee Meetings - 03/18/22 55

From Beverly Hogan Primary/MSI to Everyone:

+1 to grandfathering the students

From Bradley Adams (P - Proprietary Institutions) to Everyone:

I support the transition period proposed by Emmanual

From Kelli Perry - (P) Private Non-Profits to Everyone:

+1 Barmak - "the start of the program" should be added.

From Adam Welle, State AGs (P) to Everyone:

I agree with Barmak. The change that is necessary would 

be to clarify that the assessment of a student's state is 

taken at the time of initial enrollment.

From Bradley Adams (P - Proprietary Institutions) to Everyone:

+1 to Barmak 

From Sam Veeder (P) FA Administrators to Everyone:

+1 Barmark and I support the transition period.

From Beverly Hogan Primary/MSI to Everyone:

+1 to Barmak's comment. We need to ensure the students 

are not unintentionally adversely impacted.

From Kelli Perry - (P) Private Non-Profits to Everyone:

+1 to transition period. Schools will need time to meet 

the requirements.
Committee Meetings - 03/18/22 56

From Jamienne Studley-Accrediting Agencies (P) She/her to

Everyone:

and of course schools would be wise to tell students 

clearly at the initial enrollment point that state rules vary 

and if they relocate or plan to seek licensure in a different 

state from their location at enrollment they should check the 

requirements

From Beverly Hogan Primary/MSI to Everyone:

+1 to Jessica. The language should be more clearly 

aligned with expressed intent.

From Barmak Nassirian (A) Servicemembers & Vets to Everyone:

Jessica's comment could be addressed by having the rule 

apply to students starting in the first enrollment period 

after the effective date

From Jessica Ranucci (A)- Legal Aid to Everyone:

+1 to Barmak, that would solve it

From Jamienne Studley-Accrediting Agencies (P) She/her to

Everyone:

+ 1 to Barmak and Jessica

From Marvin Smith (P) 4 Year Publics to Everyone:

+1 to Barmak and Jessica

From Kelli Perry - (P) Private Non-Profits to Everyone:
Committee Meetings - 03/18/22 57

can you put that definition on the screen so we can all 

see it

From Bradley Adams (P - Proprietary Institutions) to Everyone:

Could it be on or after July 1, 2024

From Kelli Perry - (P) Private Non-Profits to Everyone:

I am back at the table

From Emmanual Guillory (A) PNPs to Everyone:

Honestly, it is still unclear

From Emmanual Guillory (A) PNPs to Everyone:

I am not sure why ED cannot make this more clear in these 

regulations.

From Adam Welle, State AGs (P) to Everyone:

I would propose that we come back to this section once ED 

has come up with language that incorporates the language in 

600.9

From Emmanual Guillory (A) PNPs to Everyone:

Our reading is that students will loose eligibility if 

they move

From Emmanual Guillory (A) PNPs to Everyone:

This can easily be cleared up by clarifying this in (32).

From Carney King (A) Students and Student Loan Borrowers to

Everyone:
Committee Meetings - 03/18/22 58

Agree with Ernest. We are here to stop bad actors

From Jamienne Studley-Accrediting Agencies (P) She/her to

Everyone:

Thank you, Ernest, for that strong statement.

From Marvin Smith (P) 4 Year Publics to Everyone:

Well said Ernest. I really hope ED promises to address 

transcript withholding in the future

From Ernest Ezeugo (P) Students and Student Loan Borrowers to

Everyone:

I would finish by saying that I would absolutely be moved 

to a yes vote if we could talk longer about the differences 

the Department sees in its authority on withholding compared 

to other things it's acted on, and considered maybe even 

banning or speaking against the practice under a certain 

amount owed to protect low-income students.

From Ernest Ezeugo (P) Students and Student Loan Borrowers to

Everyone:

But I appreciate everyone's patience with me on this.

From Adam Welle, State AGs (P) to Everyone:

I agree with Ernest's concern and I urge the Dept to 

consider what other ways it could take on that issue.

From Jamienne Studley-Accrediting Agencies (P) She/her to

Everyone:
Committee Meetings - 03/18/22 59

+ Anne re greater v lesser or another solution that does 

not endanger students in the admirable effort to press states 

to review length of program reqts and reduce unnecessary hours

From Jamienne Studley-Accrediting Agencies (P) She/her to

Everyone:

+ Jessica

From Amanda Martinez (P) Civil Rights to Everyone:

+1 Jessica

From Marvin Smith (P) 4 Year Publics to Everyone:

+1 Jessica

From Ernest Ezeugo (P) Students and Student Loan Borrowers to

Everyone:

+1 Jessica

From Ernest Ezeugo (P) Students and Student Loan Borrowers to

Everyone:

And +1 Amanda

From Amanda Martinez (P) Civil Rights to Everyone:

+1 Ernest!!

From Beverly Hogan Primary/MSI to Everyone: 

+1 to Anne

From Carolyn Fast (P) Consumer Advocates/Civil Rights to

Everyone:
Committee Meetings - 03/18/22 60

Jaylon Herbin is coming in now

From Debbie Cochrane (P), State Agencies to Everyone:

I agree with many of the concerns raised, despite my 

upvote, and I do hope ED continues to reconsider the issues 

raised by Ernest, Jessica, and Amanda.

From Kelli Perry - (P) Private Non-Profits to Everyone:

Emmanual will be coming to the table for Private nonprofits

From Beverly Hogan Primary/MSI to Everyone:

+1 to Debbie

From Ernest Ezeugo (P) Students and Student Loan Borrowers to

Everyone:

Carney King will be coming to the table for the duration 

of 90/10.

From Jamienne Studley-Accrediting Agencies (P) She/her to

Everyone:

+ Debbie, room for improvement

From Anne Kress (P) Comm Colleges to Everyone:

Will Burden will be coming to the table for Community 

Colleges.

From Bradley Adams (P - Proprietary Institutions) to Everyone:

+1 David
Committee Meetings - 03/18/22 61

From Bradley Adams (P - Proprietary Institutions) to Everyone:

that is exactly how we do that at South College

From Travis Horr (P) Servicemembers & vets to Everyone:

+1 Adam

From Jaylon Herbin- (A) Consumer Advocate & Civil Rights to

Everyone:

+1 to Adam's concern on adding ISA's here

From Jessica Ranucci (A)- Legal Aid to Everyone:

+1 to Adam

From Bradley Adams (P - Proprietary Institutions) to Everyone:

correct Dave. It has always been just principal only 

portion of the payment, so adding this language clears this up