Negotiated Rulemaking - 12/10/21

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 DEPARTMENT OF EDUCATION

OFFICE OF POSTSECONDARY EDUCATION

AFFORDABILITY AND STUDENT LOANS COMMITTEE 

NEGOTIATED RULEMAKING SESSION 3, DAY 5, AFTERNOON

December 10, 2021

On the 10th 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. MACK: Welcome back from the lunch 

hour. Good morning and good afternoon, depending on 

where you fall in our country. We are going to turn back 

to where we left off before the lunch break. We had 

briefly discussed the false certification issue and 

discussed that we would return to it after a 

constituency or two had an opportunity to consult with 

folks. I believe for the initial false certification 

consensus check, we did have one dissenter, Josh, we 

already spoke with you about that before the break, so I 

wanted to check in with you first to see if you've had 

an opportunity to consult with those you needed to so 

that we could move forward with this discussion and 

perhaps revisit the consensus.

MR. ROVENGER: Yes, thanks for 

everyone's indulgence on that. We've talked with our 

constituency with the Department's inclusion of that 

sentence and we're prepared to withhold our block of 

consensus and can live with the language, as is.

MS. MACK: Okay. So what I would like 

to do for the transcript for the record and to make this 

official, invite a representative of each constituency 

to again on the issue of false certification, hold up 

your thumbs so that I can read it into the record. So if 
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you'll do that now and hold it up until I get to you, I 

would greatly appreciate that. Bethany, I see your hand.

MS. LILLY: Just quickly, to clarify, 

this is with the addition that the Department is making 

to satisfy Josh, right?

MS. MACK: That is my understanding. 

Jennifer you can correct me if I've have misspoken.

MS. HONG: No, we can't, if it's 

helpful for us to cue the document to tell you where 

that language.

MS. LILLY: I just wanted to 

understand what we were voting on and I thought I did, 

but I just felt like it was worth verifying before I 

voted.

MS. MACK: Not a problem. I'd rather 

it be crystal clear. Go ahead, Jennifer.

MS. HONG: So to be sure, it's just 

the inclusion of the first sentence of Josh's proposed 

text. Remember for false cert, we have both, yeah, I 

think we should just look at it so everybody's on the 

same page here.

MS. MACK: Let's do that.

MS. HONG: If you could copy that 

language, Aaron, in the comment bubble and then what 

we're going to do, we're going to go to page 16, which 
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is the last page of the FFEL proposed language. And this 

is important because I just want to be sure that Jaye is 

on board and understands. At the end of page, right 

before, so it'll be a new 16, yeah, right, there you go, 

Aaron. You can delete the D because what this language 

suggests, submitting to the Secretary and application, I 

just didn't want there to be any kind of confusion of 

FFEL lenders side of things. Obviously, we don't expect 

GAs to review or accept applications. Just as with 

anything else we would, once an application is approved, 

we would notify GAs to discharge the loan. And I see 

your hand up.

MS. MACK: Yeah, I see you Jaye. 

Please go ahead.

MS. O'CONNELL: Yeah, I just, in 

session two, I think I had asked a few questions about 

the without an application conditions and how that would 

work, and Brian did respond to those. So that would have 

been my question. So thank you very much. No concerns.

MS. HONG: Okay, great. And then we're 

going to move over to the attendant Direct full 

language and go to page 21. And we wanted, before 

discharge procedures, scroll down a little bit more. 

Yeah, right before discharge procedures and after 

discharge without an application, we'll add a new 10.
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MS. MACK: Josh, please go ahead.

MR. ROVENGER: Yeah, this satisfies 

our concern. So this placement works for us, and I just 

want to thank the Department for adopting this change. 

It's going to make a difference for borrowers.

MS. MACK: Thanks for that, Josh. And 

thanks again, Bethany, for your clarifying question, 

which prompted the walkthrough, I think it was probably 

helpful for everyone to see this. So with that said, now 

that we have walked through this, I will ask that we 

stop sharing the document on the screen so everyone can 

be seen on screen and please hold up your thumbs for an 

official consensus check on issue 11, false 

certification discharge. Josh is sideways. Jeri 

sideways. Anne is abstaining, which is the equivalent of 

not dissenting. Jaye is sideways. Bethany is up. Dixie 

is up. Noelia is up. Christina is up. Daniel is up. 

Carol is sideways. Justin sideways. Heather is a thumb 

up. Misty thumb up. Michaela thumb up. Joe thumb up 

David thumbs sideways. Marjorie thumb up and Jennifer 

thumb up. Which means the committee has in fact reached 

consensus on issue 11, false certification discharge. So 

I appreciate everyone's work and discussion on that. I 

would like to move us now if we're prepared back to 

issue 12, which is Pell Grant eligibility for prison 
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education programs. I know there has been ongoing 

discussion around how we might move to consensus on that 

issue. To recap, when we took the initial consensus 

check on this, there were, in fact, two constituencies 

dissenting. Daniel, I believe you were one and Heather, 

I believe you or the other. So I would like to invite 

additional comments and points of clarification on where 

we are in those deliberations in terms of moving towards 

consensus.

MR. BARKOWITZ: I'll defer to Heather 

to go first.

MS. MACK: Heather, you've been 

voluntold. Are you prepared to share with us?

DR. PERFETTI: Alright. Thank you, 

Daniel. So I had drafted some alternative language and 

provided that to the Department for their consideration. 

At the lunch hour, we had an opportunity to talk about 

some of those changes. I'm not sure if Aaron can give us 

an update on what provisions are, is the Department 

willing to reconsider? I think some of our concerns 

centered around various sections of the draft 

regulations and significant concerns under 668.241, 

which is the best interest determination with a list of 

criteria that programs can use to evaluate their 

success. And the statutory language has those criteria 
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as a “may” be used, and the regulatory language before 

us indicates that those criteria “must” be used. And so 

there are concerns with going beyond congressional 

intent and there is concern from our constituents of 

some of the administrative burdens that are being placed 

into the draft language. So I'm not sure if Aaron you 

had an opportunity after our lunch discussion, which 

lasted right up until the moment of return. So I think 

that hearing from Aaron would help me understand where 

the Department is on some of those proposed changes.

MS. MACK: Alright, I appreciate that 

Heather. First, I want to acknowledge Stan in for 

independent students, Persis in for legal aid and Dr. 

McTier in for, excuse me, private four-year 

institutions. In response to Heather, Department, Aaron, 

Jennifer, anything, any initial response before I start 

going to additional hands?

MR. WASHINGTON: I apologize. Heather, 

do you want me to move through the documents or shall 

we, actually let's let Daniel go first and then I'll 

respond.

MS. MACK: Sounds good, Aaron. Thank 

you. Daniel please go ahead.

MR. BARKOWITZ: Yeah, thank you. So I 

have a couple of comments. So one of the main reasons 
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that I had objections or concerns in the first time was 

around the Clery language. The Department has had some 

conversations. I've also had an opportunity to speak 

with institutions who've been in the in the pilot 

programs. I think I'm comfortable with the owned or 

controlled language. My understanding is that prison 

education programs that are housed in carceral 

facilities will be in spaces that are not necessarily 

controlled fully by the institution. I think there's an 

out there around Clery Reporting. So I think that issue 

is partially resolved. I will say separately, and this 

goes back to the issue that Heather just highlighted, 

I've heard from a number of institutions, as well as 

some sector representatives, that there is a huge 

administrative burden. There is a huge administrative 

burden encapsulated in these regulations and that I 

think unintentionally, the Department will actually be 

chasing schools to the exit of this program by the 

number of requirements and burdens that are placed. And 

I would specifically focus on the as yet to be 

determined reporting requirements, which hopefully I 

would advise the Department to be lenient or minimal on. 

But then secondly, the the large number of items that 

fall under the “must” categorization as Heather is as 

indicated. I think unintentionally the the the amount 
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the huge amount of reporting required and calculation 

required is going to have the opposite effect as 

intended and is going to actually have institutions 

leaving the program. So that's the feedback we're 

getting from from the associations as well as 

institutions, and I just want to make sure that's read 

into the record.

MS. MACK: Okay, thank you, Daniel. 

Aaron, please go ahead.

MR. WASHINGTON: Thank you for those 

comments, Daniel. I would like to call for a caucus with 

Heather and well with accrediting constituency and the 

Department that includes our legal counsel. If Heather 

would if Heather and Michale would like any other 

constituency to be a part of that. That is, they're more 

than welcome.

MS. MACK: Let's pause the 

livestreaming while we determine our caucus composition 

and set that up with the technology. Welcome back, 

everyone. First and foremost, I want to thank everyone 

for their patience while we did have a caucus. The 

caucus, I can tell you, included accrediting agencies, 

financial aid administrators, two-year public colleges, 

four-year private nonprofit institutions, minority 

serving institutions, independent students, and 
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representatives of the Department. So those groups were 

again convened in caucus during that break. Now that we 

have come back out of that caucus, I want us to re I 

want to invite you to start that conversation, report 

out anything that needs to be shared out of the caucus 

so that we can continue talking about issue 12. 

Michaela, please.

MS. MARTIN: I'm so sorry. Stanley is 

at the table also, I just wanted to clarify that I was 

not a part of the caucus. Stanley was a part of the 

caucus as the subcommittee, so it was not independent 

students that was invited. Sorry, I know that's 

procedural, but I wasn't there.

MS. MACK: No, but he is an alternate 

for that constituency, so I wanted to make sure that it 

was known that a representative of that was there. Dr. 

McTier. But thank you, Michaela.

DR. MCTIER: Just a clarifying 

question. So is there another vote that's getting ready 

to take place? Because I know previously, if a person 

maybe didn't change their position, does that vote still 

stay the same? I'm just trying to figure out where we're 

going with this.

MS. MACK: What I'd like to do is pick 

up with the conversation and hear where we currently are 
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based on the conversations that have taken place within 

the session and in the caucus so that we can decide 

whether a second official consensus vote makes sense at 

this time.

MR. WASHINGTON: Is there a time limit 

on this? Or what's the?

MS. MACK: No.

DR. MCTIER: No. Okay.

MS. MACK: Are there any additional 

comments or clarifying questions from anyone on the 

committee around this issue? Daniel, please.

MR. BARKOWITZ: So to Dr. McTier's 

point, I will I will begin the conversation by saying if 

if I was one of the dissenters last time, if a new vote 

was taken, I will. I will be changing my vote to a 

sideways thumb. However, I have significant reservations 

that go beyond minor concerns with what's in front of 

us. And it really has to do I don't want to stand in the 

way of moving programs forward. However, I'm again 

significantly concerned that the administrative burden 

on institutions is such that a number of institutions 

will choose not to participate in the program. I don't 

think that's in the interest of the Department or 

incarcerated individuals. And so while I will be 

changing my vote, I still, you know, I want to be clear 
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that I have concerns about the amount of reporting and 

the amount of administrating that is required.

MS. MACK: Thank you, Daniel. I 

appreciate your comment. I'm going to get to the 

additional comments and because at least one dissenter 

has indicated that their position may have changed. We 

will likely take another official consensus check to 

reflect that. David, please go ahead.

DR. TANDBERG: Yeah, so I was sideways 

thumb last time, I'll remain sideways thumb this time. I 

do share concerns that we are with the demands on 

reporting, et cetera, that we have the potential to lose 

some prison education programs that some institutions 

will choose not to offer it. And I realized the obvious 

need to balance quality consumer protections and access, 

which is why I'm a sideways thumb. I would ask, though, 

that if this moves forward with the present language 

that the Department carefully monitor and receive 

feedback on institutional participation and 

administrative burden and be open for the potential for 

future revisions, future neg regs, if we are in fact 

finding that we're limiting access to be a horrible 

thing, right? That students, there may be one provider 

that will serve a single institution and if that's not 

there, those incarcerated individuals won't have access 
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to postsecondary education. So I'm thrilled with the 

guardrails and the consumer protections. I just want to

make sure that we're careful in monitoring and 

evaluating the impact these regulations have on access 

for incarcerated individuals, because that's critically 

important.

MS. MACK: Thank you, David. Heather,

Please go ahead.

DR. PERFETTI: So I believe the 

committee knows that I was the other dissenter and I'd 

like to, for some explanations, because I'm not sure my 

position has shifted, and I know that much of the 

conversation has taken place in private with others and 

with the Department. And I will say that the Department 

has offered to consider revisions in some of the areas, 

but from our perspective, perhaps not in the most 

important one, which is 668.241, the best interest 

determination, which is changing criteria that is in 

statute from “may” to a “must” in terms of program 

assessment, which impacts institutions and the way they 

assess their programs. And I understand that that is to 

gather good data and is directed to the Bureau of 

Prisons. But the Bureau of Prisons does not run the 

academic program, the institution does. And so our 

request was that the Department consider using the 
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statutory language to make that criteria, including, but 

not limited to, or “may” or some other reflection under 

that specific provision. And I did just want to also 

indicate that a leading practitioner in the field had 

outreached, and I wanted to share some of her concerns 

because they echo what I've been sharing with the 

committee. Her job is to help emerging practitioners and 

educators from around the country build new college 

programs at their institutions based on lessons learned 

over the course of 20 years of doing this work. She 

shared grave concerns about some of the regulatory 

decisions being proposed and wrote in support of what 

I've been asking about. In particular, the edit that's 

been offered to align the assessment and evaluation 

process with the statute. She found that to be critical 

as well. Her sentiments were that turning that list into 

a reporting mandate, a surely well intended but ill 

informed decision will deeply harm colleges’ ability to 

protect autonomy and prevent colleges from falling under 

some of the worst impulses of the carceral regime of 

carrots and sticks. A mandated reporting scheme will 

inevitably be misinterpreted and abused and insert the 

prison into college business in perhaps harmful ways. 

Maintaining academic integrity and autonomy in prison 

has already been a herculean effort. It's a job that, 
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when well done, is invisible to our incarcerated 

students, but makes all the difference in their 

educational experience. The list of metrics in statute 

was intended to be illustrative. I know that when we 

have spoke about other regulations, we included 

illustrative lists in support regulatory language and I 

was recommending that we do the same here. So I won't 

read her additional comments, but I did want to 

incorporate those into the record as she was not able to 

obtain a spot at the end of the day yesterday to speak 

to the committee. I would ask Kayla, much like Josh did, 

if there was an opportunity for me to consult with 

constituents before taking the vote so I can talk with 

them about the Department's conversations with me and 

Michale earlier today. Thank you.

MS. MACK: Thanks, Heather. Let me get 

to another couple of hands and then we can talk about 

what that might look like within the time period that we 

have left today. Stan, please.

DR. ANDRISSE: So thank you for that 

Heather. And I just wanted to point out that it sounds 

like that was from a practitioner and Heather is here to 

represent accrediting agencies. So if that is the 

concern of a practitioner, we have a practitioner on the 

call within the negotiators. We have institutions 
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represented. They should be the one that have that 

concern. That does not seem to be a concern. You know, 

what you’re dissenting for is not something that is 

directly tied to accreditors and that that response 

(inaudible) is is a practitioner. I would also add that, 

you know, the, you know, having been in this work for 

some time and being one of the advocates that even is 

the reason that this is brought before us. Being one of 

the advocates to help bring power restoration back for 

incarcerated individuals and knowing different levels of 

practitioners in terms of types of programs. What it 

sounds to me is that comes from, you know, there's 

different degrees of programs and that may be a 

privileged program that may have different resources 

than other programs. When we when we think about why we 

want to put this in place, it's for the best interests 

of students. And one of the data points that I shared, 

you know, is the fact that when we look at what is the 

percentage of people of color within incarcerated 

spaces, it's 80% of people who are incarcerated are 

people of color. When we look at the percent of people 

who are in programs of higher education inside prison, 

it's nearly 80% white. So how does that happen? It 

happens because we have not been able to gather good 

data to be able to address issues such as that. So this 
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is a metric that's being put in place to protect 

students. And yes, it may require reporting, but the 

metric is in place to protect students and to bring 

equity to those students and to those populations.

MS. MACK: Thank you, Stan. Jennifer,

Please go ahead.

MS. HONG: Yes, thank you, Stan. I 

just wanted to I talked about this during the caucus and 

Ron put some flesh around it, but basically I just 

wanted to clarify that we're well within our statutory 

authority and we are aligned with the statute. There are 

times the statute permits the Department, nudges the 

Department, to implement requirements. While it was a 

“may”, it was a policy decision on our end to make it a 

“must” because we feel like these data are important. We 

feel like this whole best interest determination really 

gets to some of the data points that Stan just talked 

about. And without downplaying the administrative burden 

as you cast it for institutions, I think Heather 

mentioned this and Daniel that he's moved his thumb up. 

I just I don't want people to lose the big picture of 

this, right? This is this is about more than just Pell 

Grant eligibility, right? This is about a commitment and 

a commitment on the side of federal government,

commitment on the side of our higher education 
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community, and a commitment on the side of accrediting 

agencies and who we lean toward that provide expertise 

on reviewing best practices to ensuring that students 

are have high quality access to high quality programs. 

So this is really meant to ensure that and to ensure the 

longevity going forward. If we don't have the data, 

someone mentioned in the caucus in the caucus about 

kicking the can, this isn't going away. We need to we 

need to have a better understanding of what works in 

these programs so we can continue them and so that we 

can continue to shine a spotlight on them and improve 

them going forward. And so I would just plead that we 

kind of let's let's not think about it as a burden. 

Let's think about it. Like, be curious about it. What, 

what, what should we be looking at? What ought we be 

looking at? And and make improvements going forward.

MS. MACK: I see David, Daniel, and 

Heather's hands. Want to get to all of you and then talk 

to you a bit Heather about whether a short break would 

be sufficient time for consultation. David.

DR. TANDBERG: Yeah, I feel like I 

didn't share enough. I shared why I was a sideways thumb 

and not an up thumb. But perhaps I should share why I'm 

a sideways thumb and not a down thumb. And it's really 

for the reasons that Jennifer and Stan articulated. This 
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is an incredible, life changing opportunity with the 

expansion of the Pell Grant. And I do understand the 

obligation on the part of institutions, the federal 

government, accrediting agencies, and state agencies to 

have a different standard of consumer protection and 

quality assurance for incarcerated postsecondary 

education for incarcerated individuals. We have a 

history of systemic and structural racism at play when 

it comes to our corrections systems. We have a legally 

defined vulnerable population without access, without 

choice in the matter. And so I am 100% supportive of a 

different level of scrutiny. I would only ask, as I did 

before, that we carefully monitor the impact on access 

because that's an equally important element here, and we 

don't want to lose critical providers in when they're 

the only option, right? But let me be absolutely 100% 

clear I am I am for a higher standard. I would consider 

it a privilege for an institution to be able to provide 

education in our correctional institutions. It's 

something they should be proud of. And so I'll leave it 

at that.

MS. MACK: Thank you, David. Daniel, 

please.

MR. BARKOWITZ: And David, I echo all 

your comments and thank you for encapsulating why my 
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vote has changed as well. I will say just quickly to 

Jennifer's comment. So so what I don't see under 

reporting is reporting of everything that's under the 

direction of best interest. So this is again where I'm 

struggling to understand the Department's perspective. 

So, so all that needs, these are all these things need 

to be calculated, they need to be determined based on 

the Department's position, but ultimately, all that 

needs to move forward is a vote by the oversight entity, 

whether it's in the best interest or not. I presume 

that's auditable, but there's no reporting of those 

pieces. The reporting is is to be defined later by the 

Department. That also gives me pause. Again, not 

sufficient pause to object, but it gives me pause as an 

institutional representative because there is so much 

undefined. So I presume by the conversation that 

everything under your best interest would be reportable, 

but that's not actually in the regulation today. So just 

just to try to add some clarity to that. And I don't 

know Aaron, if you're wanting to respond to that or not, 

but I would invite you to respond.

MR. WASHINGTON: I think Heather's 

hand Heather's hand but I'll leave it to Kayla.

MS. MACK: If you're going to respond 

to specifically that, please go ahead, Aaron, and I'll 
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get to you just next Heather.

MR. WASHINGTON: Okay. Under, 668.241, 

you go to paragraph E 2 romanette 2 the evaluation must 

be submitted to the Secretary no later than 30 days 

following the completion of the evaluation, so that 

Department will be getting that information, Daniel.

MR. BARKOWITZ: Right. But again, if I 

can respond? So the evaluation is whether or not it's in 

the best interest. It doesn't say the evaluation is all 

the subsequent data. It's because you've said several 

times, Aaron, all that's critical here is whether the 

oversight entity determines in light of the totality of 

circumstances, whether or not the program meets the 

definition. So I read that to say that the the decision 

has to be communicated, not all the underlying data. So 

again, that may be your intention as a Department, but I 

don't think that's clear. And again, it's not changing 

my vote. But just to put that on the table, I think this 

addresses again one of the concerns around what data is 

really necessary and required.

MS. MACK: Thank you, Daniel. Heather, 

please.

MR. WASHINGTON: If can, if I, I'm 

sorry. We also say in the paragraph below that, I 

apologize, we also in the paragraph below that F that 
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the institution must have obtained and maintain 

documentation of the methodology by which the oversight 

entity made each determination. So there so we are not 

only requiring the submission of the evaluation, but 

also maintaining documentation of the methodology behind 

this. Further, in the report that the Department, sorry 

the application for the first prison education program 

at the first two additional locations, we are requiring 

documentation detailing the methodology, including 

thresholds, benchmarks, standards, metrics and data or 

other information oversight entity use and making the 

determination that the program is in the best interest 

of the student for all indicators under 668.241.

MS. MACK: Thanks, Aaron. Heather.

DR. PERFETTI: Thanks, Aaron. So I did 

just want to address Stan's comment about the 

information that I shared from a practitioner, that 

practitioner is at an institution and that institution 

is within our membership. And one of the other 

statements she made is that she often has to share with 

prisons that there are authorities to which the college 

and the program is bound and that is an accrediting 

agency. So excuse me. So the best interests of students 

provision is tied directly to the quality of the 

program, and that is the role of the accreditor to 
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ensure that what the institutions are delivering are of 

quality. I understand that the provisions here have been 

difficult because of the statute and the way the statute 

reads and all of the different players that have 

expectations here. But I didn't want to neglect to share 

that, that she is at an institution and it's within our 

membership. So she sees the value of the accrediting 

agency within the carceral space and how she's been able 

to leverage that to create good quality programs at 

institutions. So I did want to clarify that. I also want 

to offer our data commitment. We obviously believe that 

data is critical. And one of the solutions we also 

offered was to have a section that indicates the kinds 

of data that will be used by the Bureau of Prison and 

keep the assessment evaluation process as part of the 

work that the constituency group or the advisory 

committee helps to support versus the required list of 

data that is speaking to assessment. I think those are 

two very different approaches, and so we did also offer 

that as a solution as well. So I think that the advisory 

committee, as well as the constituencies that are 

providing feedback, are going to provide the best 

indicators for assessing or evaluating the program. I 

understand the department will be collecting data. That 

data is critical. We need it. We need to understand it. 
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And the Bureau of Prisons, as well as the institutions 

will want to have it. But assessing the program should 

not rise or fall on those criteria that are “musts”. And 

so I just offer that as an alternative here again as 

well.

MS. MACK: Thank you, Heather. Aaron, 

I see your hand.

MR. WASHINGTON: I just wanted to 

reiterate as well, I spoke to this yesterday a little 

bit, but what we're saying the mandate is for the 

assessment and the mandate assessment of enrollment 

post-release. The mandate is for the assessment of job 

placement. The mandate is for the assessment of earnings 

of the individual. There are still flexibility baked 

into the regulatory language. If we just take the first 

if we just take the first romanette, whether the rate of 

confined or incarcerated individuals continuing 

continuing their education post-release as determined by 

the percentage of students who enrolled in higher 

education, as reported by the Department. So if we just 

stop there, we can note that the Department of Education 

is going to be providing this information to the Bureau 

of Prisons or the Department of Corrections, which we 

call the oversight entity. And then, it says, meets the 

thresh, meets the thresholds established by the 
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oversight entity with input from relevant stakeholders. 

And so that's where the flexibility comes in is because 

the the thresholds are set by the oversight entity, but 

they're still taking into account that feedback from 

relevant stakeholders, which we have defined as as 

representatives of incarcerated students, organizations 

representing incarcerated students, SHEEOs, and 

accrediting agencies, and it can even include more 

individuals as determined by the oversight entity. And 

keep in mind another point of flexibility that the 

Department has also amended from our final from our 

position from November 30th on the final day of the 

subcommittee was that we incorporated a concept of in 

the light of the totality of circumstances. And I think 

you all saw in the comment bubble that was sent around 

that not meeting one of the indicators is not 

disqualifying for for a prison education program, but it 

is good and we do think it's good and we continue to 

think it's good that we have an assessment of those 

indicators to ensure that the program is in the best 

interest of students.

MS. MACK: Dr. McTier

DR. MCTIER: I hear everyone. I just 

want to remind everyone that we are an hour away from 

our last, this is our last session and so I know some of 
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Negotiated Rulemaking - 12/10/21

our other constituents want to get to IDR. It seems 

again like I mentioned in the caucus that we are 

actually spinning the wheels at this point. And so I 

recommend that we either, you know, come to the vote, 

determine what we're going to do so that we can also get 

to some of these other important pieces that we're all 

here for and only because we are, we're spinning the 

wheels at this point.

MS. MACK: Thanks, Dr. McTier. 

Bethany.

MS. LILLY: I would actually mostly 

agree with Dr. McTier. I'm trying to understand 

Heather's point, and I think Michaela was asking for a 

similar clarification in the chat. So my understanding 

is that Heather's main objection is that a list of 

categories that accrediting agencies need to look at to 

approve a program is a “must” now rather than a “may”. 

Aaron has just explained that those criteria remain more 

or less flexible. The accrediting agencies have all the 

flexibility to figure out exactly what of those they 

want to use, but that the list is now a required data 

collection point, which to Stan's point earlier, seems 

to be a really important element here. Is there 

something I'm missing about flexibility here? Or is it 

just? Sorry, thanks, Aaron.
27

Negotiated Rulemaking - 12/10/21

MR. WASHINGTON: Can I just, I just, 

one thing, Bethany. The, I just wanted to read the leadin. So what we're talking about right now is 668.241, 

and the lead-in is an oversight entity's determination 

that a prison education program is operating in the best 

interests of students must include an assessment of the 

following. So the accreditation is not making these 

determinations. It is the oversight entity. Let me just 

go to the definition of oversight entity, quickly. I 

know you probably know it Bethany, but I just wanted 

everybody to hear the definition of oversight entity. 

The oversight entity is the appropriate State Department 

of Corrections or other entity that is responsible for 

overseeing correctional facilities or the Federal Bureau 

of Prisons Prisons. So what we're talking about right 

now is the determination by those entities the Bureau of 

Prisons, State Prisons of Corrections.

MS. LILLY: Okay. Aaron, you just went 

on mute.

MR. WASHINGTON: That's it. That's it. 

Did you hear the did you hear the last part?

MS. LILLY: Okay, that is very 

helpful. So the problem is actually that Heather is 

probably worried that her agencies are losing authority 

to make this determination. That makes way more sense to 
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Negotiated Rulemaking - 12/10/21

me now than what I was thinking earlier. So thank you 

for that.

MS. MACK: Heather, would you like to 

clarify?

DR. PERFETTI: Institutions delivering 

the programs that are being dictated in terms of the 

measurement. Which what is usually done is the 

institutions have the ability to determine the 

indicators of success for students within their 

programs. And I think if the oversight entity uses these 

data elements and finds that the the program is not in 

the best interest of students, then there is a statement 

that it must allow for programs to reapply within a 

reasonable time frame so institutions delivering 

programs that are in effect on them. We as accreditors 

would also be looking at the data that institutions are 

being required to use as part of the evaluation of the 

programs. I too, just want to reiterate if we're going 

to, Kayla, allow me some time to consult with my 

constituents. I think that would be helpful at this 

point. I don't think there's new conversation here. I 

think that it's been discussed with the Department now 

multiple times with with numerous resolutions or 

alternatives proposed, and they seem to be immovable on 

that section in particular. So I'm not sure that I'm 
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Negotiated Rulemaking - 12/10/21

prepared to move forward with a vote without at least 

some time to talk with constituents, my constituency 

group.

MS. MACK: We wanted to get in 

everyone's comments, but I have promised you that we'd 

circle back so that you can have some caucus time for 

consultation purposes. Stan I do see your hand. Any 

final comments before we would move in that direction?

DR. ANDRISSE: Yes. So just a final 

thought is, so as an accrediting agency, your 

responsibility should be to make sure programing is in 

the quality is in the best interest, you should not be 

letting your institutions that you accredit dictate how 

you how you move. So the fact that one of your 

institutions is telling you that this is a bad move 

shouldn't weigh so heavily on how you view it as the 

accrediting agency, because your responsibility is to 

make sure that what they program is of quality. So they 

shouldn't be that that's power and privilege being used 

at its highest form. You're letting it a powerful 

institution, presumably, use their power to say that as 

the accrediting agency, you shouldn't move this way. It 

shouldn't work that way. You should be representing your 

accrediting agencies, not an institution that you 

accredit.
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Negotiated Rulemaking - 12/10/21

MS. MACK: Heather, please go ahead.

DR. PERFETTI: So, if I could, I was 

just sharing one story from one institution, I have 

consulted with my constituency group, who also have 

objections for similar reasons. So it is not just 

representing one institution. It is the sentiments that 

have been shared by other accreditors just for clarity.

MS. MACK: I see no other hands. 

Heather if we go to a caucus so that you have an 

opportunity to consult. How much time do you anticipate 

you would need before we could reconvene and come back 

for the purposes of an official consensus check?

DR. PERFETTI: Kayla, I won't need 

long. I don't know if you want to move on to the next 

topic and Michale can come to the table while I consult 

with others, and that won't delay getting to these other 

important topics.

MS. MACK: Okay, I'm seeing a number 

of thumbs up from the group. So if Michale, alternate,

would like to come to the table while Heather steps 

away, we can continue with our process. Let me do a 

quick recap for everyone. Your committee has reached 

consensus on issue one, total permanent disability 

discharge, issue three, eliminating interest 

capitalization for non-statutory capitalization events,
31

Negotiated Rulemaking - 12/10/21

and issue number 11, false certification discharge. We 

already in the course of our process today returned to 

issue one I'm sorry issued two closed school discharge 

and that one will remain without consensus. We have also 

touched back on issue 12, and that is where we now have 

Heather consulting with some constituencies before we 

would resume the process on that particular issue and 

take a second official consensus check to see if we are 

in fact in consensus at that time. That means that we 

remain with issues 4 and 5, PSLF, where the initial 

check was not consensus. IDR, issue 10, where we did not 

have initial consensus. Three Borrower Defense issues 

issues 6, 7 and 8 where we did not have consensus 

earlier today and pre dispute arbitration issue 9 where 

we did not have consensus earlier today. So what I would 

like to do is start from the top, revisit our PSLF 

issues, issues number 4 and 5, and ask the committee if 

there are any new ideas for moving us forward towards 

consensus? Daniel.

MR. BARKOWITZ: I'm sorry, Kayla. Just 

a process question, in our agenda, we actually covered 

IDR before Public Service Loan Forgiveness. Personally, 

I would find it helpful if the Department has any 

response to the any further response to the issues 

raised because that will influence my vote on PSLF. So I 
32

Negotiated Rulemaking - 12/10/21

don't know about the rest of negotiators, but I think 

again, because they are tied together, I feel they need 

to go in that order. I don't know. I'm seeing Bethany's 

head shake, yes. I'm seeing David's camera shake. I 

think that's his head as well. Okay. So yeah, I think I 

think all of us would like to take IDR first, just to 

get a sense of whether or not there's any movement from 

the Department on IDR.

MS. MACK: Understood. What I was 

intending to do is try to go in the order of the issue 

numbers, but also where we were closer rather than 

further apart. We can go back to IDR, but I want you to 

all to keep in mind that this isn't a grouping based 

consensus and it's issue by issue consensus. So I want 

you to continue to consider those and you should base 

each of the checks on whether you have serious 

reservations on those issues. But if we would like to 

chat around IDR, I'm happy to check in. Bethany, first, 

I see your hand.

MS. LILLY: But this entire rulemaking 

is on all of the things, and I think negotiators have 

made it excruciatingly clear that we think IDR and PSLF 

are tied issues and part of our concerns when it comes 

to the I will admit a decent proposal from the 

Department on Public Service Loan Forgiveness doesn't 
33

Negotiated Rulemaking - 12/10/21

address the exact people that they say that they're 

trying to help with the IDR proposal. And so they're not 

being helped in IDR, they're not being helped in Public 

Service Loan Forgiveness. So that's why we're stuck here 

like to think that they're separated issues, I mean, 

sure we can, we can keep talking about it. But like, 

we're trying to help the same population of folks who 

are getting help from neither of these proposals. And so 

that's why I think negotiators are particularly 

frustrated and would like to hear from the Department on 

IDR.

MS. MACK: I hear you, and it's our 

full intent as the facilitation group to get back to all 

of those issues and take consensus checks, if the mark 

is moved, new ideas come forward. Jennifer, there's a 

request from the committee to first initially hear on 

IDR. Is there any anything new from the Department on 

that particular issue that would be helpful to the 

conversation?

MS. HONG: So nothing new, nothing new 

on IDR. Just reiterate that everything that was raised 

we're taking into consideration as we move this process 

forward, we think that there are a lot of good ideas. 

Again, we came to the table initially with more open 

ended questions on IDR. We took some more time to kind 
34

Negotiated Rulemaking - 12/10/21

of develop that and we're going to take these issues 

back as we consider them going forward with the 

(inaudible).

MS. MACK: Any new ideas or thoughts 

from the committee on this issue? Michaela.

MS. MARTIN: And it's not new, but I 

really haven't moved from that, like if we're not 

expanding PSLF, then IDR is intrinsically linked to 

ensuring that there's a pathway. And so I can't really 

give behind the idea of someone's ability to get out 

from a lifetime of debt based solely on the corporate 

tax designation of the employer that they give their 

their labor to. I just I just can't like, I think the 

term that gets thrown around is it's a philosophical 

difference, right? And that's fine. I can't I just can't 

do that. And so I hope that when they go back that 

there's attention given to IDR and that it isn't only 

viewed as a vehicle for PSLF because it is so much more 

than just a vehicle to PSLF, even though they are 

connected in that way. And I I just really hope that 

there is meaningful consideration about the current 

state of things, particularly with payments coming up, 

right? Like people are looking to this and waiting to 

hear like what can be done? Are payments going to be 

lowered? Because we are in a national student debt 
35

Negotiated Rulemaking - 12/10/21

crisis and this doesn't address the level and the 

brevity of the topic. It's kind of a little bit 

disappointing. And not to, like you Jennifer, and I 

appreciate the work that's been done, but it just it 

just doesn't hit the mark.

MS. MACK: Thank you, Michaela. 

Bethany, please.

MS. LILLY: Is there anything else we 

could discuss that would be helpful for the Department 

as they continue to have these discussions? I mean, I 

think that the analysis and the details that we've given 

around, especially the impact of graduate school loans 

from a racial equity lens from discussing exactly which 

poverty levels are where and how much they were money 

were actually talking about and the difficulties that 

creates geographically. I mean, I'd be happy to cede my 

time to more public witnesses if that's something that 

we could do. I just, is there anything else we can do to 

be helpful to Department here in this? I think we've 

made ourselves fairly clear, but if there's something 

else that we could talk about, that would be helpful. 

I'm certainly happy to do that. And I know there's no 

public comment today, but like if since we're sitting 

here kind of waiting on Heather I, I was trying to come 

up with ideas.
36

Negotiated Rulemaking - 12/10/21

MS. MACK: Persis, please.

MS. YU: Thank you. So I want to 

follow up and, you know, give this this opportunity that 

I do appreciate some of the pieces that the Department 

has considered. I think that the inclusion of defaulted 

borrowers and IBR is a really important change, as is 

the inclusion of pre-consolidation loans on both Direct 

and FFEL loans for Income Driven Repayment. I think 

that's really important and I don't want that to get 

lost, but I have to agree with Bethany and Michaela here 

that this proposal, it just doesn't meet the moment. 

We're in a student loan crisis where we acknowledge 

that, you know, nearly a quarter of borrowers are 

behind, you know, before the pandemic, were behind on 

payments and there's a lot of structural reasons that 

that has happened. And this proposal, the EICR, only 

focuses on such a narrow, tiny part of it. I mean, an 

important, the payment amount is an important part, but 

it is only one part of it. And I think low-income

borrowers, you know, the folks who we represent are the 

ones who have gotten left out of of both the PSLF and 

the IDR proposal. You know, there is not really a 

meaningful way for them to get cancelation sooner, 

either through PSLF or IDR. I think the Department did 

an amazing job with the PSLF waiver, you know, through 
37

Negotiated Rulemaking - 12/10/21

the way, I mean, there was more that I would have liked 

them to have done in it, especially for borrowers in 

forbearances. But like but there was an RFI on what has 

gone wrong on what the Department could do more of. And 

we have not seen that level of dedication for the lowincome borrowers, the folks who were, you know, 

essential workers during the pandemic who, you know, 

have been working at grocery stores and in restaurants 

and who are going to be making payments for at least 20 

years. And so we, you know, the Department, this 

administration has not met the moment for low income 

borrowers and what is needed. And so I am encouraged to 

hear the Department is considering more proposals 

through the NPRM process. But I really encourage you to 

think about what are the big structural problems keeping 

low income borrowers away from resolving their student 

debt issues and, you know, give them the relief that 

they need immediately.

MS. MACK: Thank you, Persis, Joe.

MR. SANDERS: Yeah, I agree with 

Bethany and Persis that this is a scope problem. You 

know, borrowers are in crisis, we need to address the 

major structural problems in these programs. If we're 

going to correct the extremely low loan discharge rates 

that we see in these programs. In the opinion of the 
38

Negotiated Rulemaking - 12/10/21

state AGs accounting of payments in both IDR and PSLF 

is, if not the most, if not the biggest structural 

problem, you know, it's the top three. We think that if 

if more payments were counted, then loans people would 

progress through the system and get their loans 

discharged. And so I put forward, I thought a lot about 

how can we count these? What's a way it's administrable? 

How can this work for the Department? I put forward the 

proposal that that based on our experience as state AGS 

and what we've seen in our (inaudible), addresses the 

borrowers that the the Department says that they want to 

help the the economically distressed, low income 

borrowers who just can't make payments, right? That's 

the the guardrails that I put around the counting of 

forbearances, somebody who's been in forbearance for 24 

months without making a full payment. And that's that's 

based on investigations that we've done into the 

servicing industry. If the Department doesn't like that 

proposal, we're open to other ways to count payments. I 

have seen other proposals that others have put out. For 

example, the Department will count forbearances in 

instances where state attorneys general have 

investigated servicers. That's something that we could 

probably work with and live with. You know, I'm sure 

others have, I know Persis has definitely has a lot of 
39

Negotiated Rulemaking - 12/10/21

ideas on this, her thinking that the Department has 

concerns about their authority under 1087 E, I I 

understand that. And so, you know, in my proposal and 

some of the stuff I saw from Persis, we talk about 

counting things through ICR, which is expressly 

recognized in 1087 E as a qualifying program. So I so 

that the counting the payments is my my big thing on 

both IDR and PSLF. The other thing you have to look at 

on PSLF that is what are your what are we doing about 

FFEL on a going forward basis. It's awesome, but it ends 

in a year. And so we got to do, you know, I think that 

that I think the structural change is like having the 

reporting going to the Department is a great switch from 

the disclosure dynamic. But, we need to we need to 

commit to something then of what's going to happen with 

that reporting. So I stand ready to to talk through 

those issues, I just don't know what the Department is 

looking for to to address those. And so some feedback on 

that would help. From my perspective, move that forward.

MS. MACK: David, please.

DR. TANDBERG: Yeah. Yeah, I mean, I'm 

in agreement with what Persis and Joe, Bethany have all 

said. It's clear we're we're not going to reach, to me, 

others may disagree, but that consensus ain't going to 

happen today. The Department's going to remain a no 
40

Negotiated Rulemaking - 12/10/21

vote. My call then, would be for the Department as they 

go through the process of advancing these regulations 

that they treat what we've said. I mean, I know we're 

not voting again, I think, remember, we were pretty much 

in consensus outside the Department. I mean, that's a 

damn powerful statement that you have all of these 

experts, all of these interested parties who have come 

in large agreement on what should be done. I would hope 

the Department's goal would be to write regulations that 

are largely aligned with what has been proposed and 

really excellent line item proposals, redlines have been 

given to the Department. I hope that's a starting point. 

I know Joe, Persis, and others have shared those and so 

that's my hope. I hope that this is just one inning of 

the baseball game. You got a base hit. We hope in the 

next inning you'll actually swing for a home run. It's 

there. I think all the language and the ideas have been 

presented and and that you don't miss this moment. That 

would be a real shame.

MS. MACK: Jeri, please,

MS. O'BRYAN-LOSEE: I just want to 

concur with everybody, I think there was a lot done and 

I'm glad to hear that you're still going to be 

revisiting things, and I just want to make another plug 

for the difference between grad and undergrad as well as 
41

Negotiated Rulemaking - 12/10/21

our Parent Plus people. I think there are more people 

affected than you realize, and it sounds like an 

administrative nightmare for the Department. So I just 

want to plug that one more time.

MS. MACK: Thank you, Jeri. I'm not 

saying any other hands. Jennifer, did you have any 

response or final thoughts on this issue?

MS. HONG: Yeah, no, just appreciate 

the feedback here. And also, Joe, is that is that 

investigation something that you'd be able to share with 

us?

MR. SANDERS: Yeah, we're we're, you 

know, I'll go back to my constituencies that that have 

that specific data, but I think that we're we're open to 

talking to the Department and if some evidence and data 

would help you guys, that's absolutely something that we 

can consider and we want to work with our government 

partners in this.

MS. HONG: Thank you.

MS. MACK: Alright, thank you, 

Jennifer. Thank you, Joe. If I may, I'll move us to the 

next issue to see if there are any new ideas or thoughts 

moving that forward. Now that we've touched upon IDR, if 

the committee is amenable, I'd like to move us to issues 

4 and 5 on PSLF. Does anyone have any new thoughts or 
42

Negotiated Rulemaking - 12/10/21

ideas on moving those issues forward towards consensus? 

Okay. I see no hands from the committee. It is my 

understanding as well that Heather is back from 

consulting with her constituents. So Heather, if you 

would like to return to the table, I believe we can 

return to the Pell discussion. Thank you, Heather. 

Heather, if there is anything else you want to report 

out or share with the committee, I'll give you the 

floor. Otherwise, I'm inclined to move everyone to a 

consensus check on issue 12.

DR. PERFETTI: Thank you, Kayla. I do 

just want to share that accrediting agencies certainly 

respect the work of the subcommittee led by Stan and 

Belinda and want to recognize all that the subcommittee 

invested into the regulations that came forward, and I 

know there were compromises made at the subcommittee as 

well. I still have serious reservations about the 

regulations. I am hopeful that those challenges will be 

addressed by the constituency groups. I have concerns 

that continue about good quality programs delivered by 

exceptional institutions exiting this important space. 

With that said, I will be changing my vote.

MS. MACK: Okay. Then I would like to 

move the committee to an official consensus check on 

issue 12, Pell Grant eligibility for prison education 
43

Negotiated Rulemaking - 12/10/21

programs. I'd ask that one individual from each 

constituency be on screen and hold those thumbs up until 

I call your name so that we make sure that we get 

everyone on record. You show me your thumbs now.

DR. PERFETTI: Kayla, I'm sorry to 

interrupt, but Michale reminded me that that was with 

the recommendations of changes that the Department 

agreed to accept.

MS. MACK: Let's walk through those, 

if we could, so that everyone sees those on screen. 

Aaron, if you have those at your fingertips and can 

share that document.

MR. WASHINGTON: Can, I need to make 

one request. Can Jennifer would you mind calling one 

last caucus? Jennifer Hong.

MS. HONG: Can I request a caucus with 

with who?

MR. WASHINGTON: I'm sorry, everyone 

who was in the caucus last time.

MS. MACK: Let's call these 

constituencies out then, if I may, I believe it's 

accrediting agencies, financial aid administrators, twoyear public colleges, four-year private nonprofit 

institutions, minority serving institutions, independent 

students, and the Department. Is that accurate?
44

Negotiated Rulemaking - 12/10/21

MS. HONG: That's right, yes.

MS. MACK: Brady, if you could cue

that up. As we're cuing that up, we can go, Persis I see 

your hand. Welcome back. Thank you for your patience 

during that brief caucus break. Right before we were 

going to cue the documents onto the screen and make sure 

that all committee members knew of any changes that were 

being made in the text in our pursuit of consensus, can 

we share the document on screen and review those? Just 

to remind everyone we are moving towards a new consensus 

check on issue 12. Who can I turn it over to to point 

out the couple of edits being proposed?

MR. WASHINGTON: Jennifer? Okay. Yeah. 

Okay. Sorry, I have to move the, this box over a little 

bit. Okay, so the first edit that we see on our screens 

is we are accepting the suggestion to update language 

under the accreditation accreditation requirements 

specifically on B 4 to read, reviewed and approved the 

methodology for how the institution in collaboration 

with the oversight entity, made the determination that 

the prison education program meets the same standards 

and substantially similar programs that are not prison 

education programs at the institution. Our next update 

to the regulations is in 668.241, that's the best 

interest determination. And what we've done here is we 
45

Negotiated Rulemaking - 12/10/21

have taken romanette 8, whether the completion rates 

reported by the Department of Education, well, the 

completion rate indicator and we've moved that from the 

“must” assess to the to the “may” assessed to the “may”

assess. And so so that'll end up being romanette 3 under 

“may”. Those were the two changes that were made.

MS. MACK: Thank you for that, Aaron. 

Are there any clarifying questions about those two 

changes from the committee? I'm not seeing any, so if I 

can ask that we cease sharing the document so that we 

can see everyone on screen. I am going to move everyone 

to a consensus check on issue 12. Please hold your 

thumbs high until I get to you so that we can confirm 

where we are. Thank you. Misty, sideways thumb. Heather, 

sideways thumb. Noelia, sideways thumb. Daniel, sideways 

thumb. Christina, thumbs up. Bethany, thumbs up. David,

sideways thumb. Jeri, thumbs up. Justin, thumbs up. 

Carol, thumbs up. Jaye, thumbs up. Anne, thumbs up. Joe, 

thumbs up. Stan, thumbs up. Persis, thumbs up. Dixie, 

thumbs up. And Jennifer, thumbs up. Congratulations to 

the committee. You have reached consensus on issue 12, 

Pell Grant eligibility for prison education programs. 

Alright, thank you all for your hard work and continued 

deliberations. And again, I want to extend thanks to the 

subcommittee for all of their hard work away from these 
46

Negotiated Rulemaking - 12/10/21

sessions as well. Jeri, please.

MS. O'BRYAN-LOSEE: Just one shout out 

for the education piece that went along with this, this 

was very educational for me, and I'm really proud of the 

work that we did here. And should anybody, Stan, if you 

need help with anything, you let me know. I am on board 

with with helping whatever you may need.

MS. MACK: Thank you for that, Jeri. 

Okay. That is the fourth issue that this committee has 

reached consensus on. There are several others that we 

have already returned back to to revisit throughout the 

day, including our closed school discharge, IDR, and our 

two PSLF issues. The only issues, according to my notes, 

that we would perhaps be returning to this afternoon are 

issues six, seven, and eight as related to Borrower 

Defense and issue nine as related to pre dispute 

arbitration. So the question that I would like to 

present to the committee is does anyone have any new 

thoughts or ideas on the Borrower Defense issues for 

moving them towards consensus? Again, new thoughts or 

ideas? And I'd like to recognize Josh back at the table 

for the legal aid constituency. And Jessica back at the 

table for proprietary institutions, thank you, Jessica. 

Okay, I am not seeing any new additions to the dialog 

for purposes of Borrower Defense. Please allow me to ask 
47

Negotiated Rulemaking - 12/10/21

the same of issue nine pre dispute arbitration. Are 

there any new ideas or thoughts moving the committee 

towards consensus? Okay. Then I would like to recap that 

we have now returned and revisited each of the 12 issues 

before this committee. We have reached consensus on on, 

excuse me, total and permanent disability discharge, 

eliminating interest capitalization for non-statutory 

capitalization events, false certification discharge, as 

well as Pell Grant eligibility for prison education 

programs. Alright, the remaining eight issues we have 

not reached consensus on. At this time, I'd like to ask 

Jennifer the Department is there anything else that we 

need to address or discuss as a committee? Aaron, I see 

that. Aaron, is your hand raised?

MR. WASHINGTON: It is, yeah. So I 

just wanted to say thank you to the main committee and 

subcommittee and also that the Department believes that 

completion rates are critical are a critical measure of 

student progress and institutional success. Completion 

rates are used by many entities in higher education, 

including for consumer information purposes, for under 

the Higher Education Act, by states and accrediting 

agencies in assessing college outcomes, and by 

institutions themselves in identifying gaps in 

performance and opportunities for continuous 
48

Negotiated Rulemaking - 12/10/21

improvement. And so we provide this information to the 

College Scorecard and the accreditor dashboards and many 

other contexts to support practitioners and policymakers 

and the federal government's investment, and the federal 

government invests billions each year in programs 

designed to increase postsecondary completion rates. So 

we we do feel strongly about this measure, the 

completion measure, and we also acknowledge that it 

wasn't explicitly included in the prison education 

program legislation. And we are very happy that we 

reached consensus today and and that for those reasons, 

we were willing to move that to the optional

consideration by oversight entities.

MS. MACK: Thank you, Aaron, for 

sharing that out. Jennifer, did you have anything?

MS. HONG: Nothing further on the 

agenda items.

MS. MACK: Okay. Bethany, I see your 

hand.

MS. LILLY: I don't know if this would 

be helpful or not, but since we have an hour left, I 

would be happy to go through the IDR and PSLF proposals 

and issue by issue within the proposals take a consensus 

check if that would be helpful to Department. Because I 

think there are elements, I mean, Persis highlighted 
49

Negotiated Rulemaking - 12/10/21

several of them when she was speaking earlier, where we 

would, I think you'd probably reach consensus very 

easily in the sub issue areas, so I don't know if that's 

helpful to Department. I wanted to just at least since 

we have the hour left propose that that might be one way 

to use it.

MS. MACK: Thank you, Bethany. David.

DR. TANDBERG: I do have a comment, 

but I think it may not be relevant depending on 

Jennifer's response to Bethany's proposal. So maybe I'll 

keep my hand up but yield to Jennifer.

MS. MACK: Jennifer, let me let me 

turn it over to you for a response on behalf of the 

Department in terms of how we may spend our time 

together.

MS. HONG: Sure. I think, I think we 

have I think we have a good understanding what IDR, the 

issues on IDR and a good understanding that there's an 

interest to include, to expand employer eligibility. I

understand that piece. And I was surprised that issue 

four got so many new votes. So if anything is worthwhile 

to revisit, I would suggest the improvements that we 

made to the application process. I think I'm hearing 

that there was interest in further expanding in addition 

to what we already have there, the payment counting. But 
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Negotiated Rulemaking - 12/10/21

if anything, I think that might be useful to revisit. 

We'd be open to that.

MS. MACK: Okay. David, did you want 

to share your comment based on that response? Okay, let 

me ask the committee. Are there any further points of 

clarification or ideas to offer specifically around PSLF 

issue four, the application process?

MS. MARTIN: Can you articulate just 

what all is included in that topic.

MS. HONG: Yeah, I think we literally 

took, I mean, I could just tell you, that was everything 

pertaining to the improvements we made to the to the 

process of. Remember, we took the consensus vote for 

issue five all the way up to qualifying repayment plan 

and then we took four to be everything else. Everything 

other than the definition of employer. And and so that 

that includes basically the reconsideration process, the 

automation that we included, the Hold Harmless 

procedures, the deferment and forbearances that we're 

counting. So we did a lot and and then not counting the 

having the clock restart on consolidation. So I thought 

we were all on board with those, at least with four. So 

if anybody has and that's page four to the end 

basically. If there are specific comments that folks 

wanted to make, we're happy to hear them.
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Negotiated Rulemaking - 12/10/21

MS. MACK: Okay, thank you. Daniel, 

please.

MR. BARKOWITZ: Thank you, Kayla. Can 

I ask a question to the Department? So one of the 

deferments that's not called out, so again, I get there 

are two that sort of stick out, one is the unemployment 

deferment, I get that right. Again, if you're not 

employed, you don't qualify for Public Service Loan 

Forgiveness. The whole point is you have to be in a 

qualified job. The second one that that strikes me as 

missing is school based deferment. And I go back to the 

question of and I just want to understand the thinking 

here, especially as it pertains both the deferment 

listed and the Hold Harmless area. So if a student is 

employed full time as an employee at a at a qualifying 

employer and they opt for a school based deferment, but 

choose to make a payment, that payment will not count 

toward their payment account. Is that correct? And I 

guess just it feels strange because I could choose not 

to take the school based deferment, and in that 

situation, presumably I could be making payment and 

could have qualifying periods. But if I choose to take 

the school based deferment and make a payment, it 

doesn't qualify. So was that intentional or am I am I 

misunderstanding? Because that's also conceivable that I 
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Negotiated Rulemaking - 12/10/21

just I misinterpreted what the Department's intention 

was.

MS. MACK: Is there an immediate 

response to Daniel's inquiry?

MS. HONG: No, go ahead, I'll circle 

back.

MS. MACK: Okay, I want to acknowledge 

that Carol has come in for proprietary institutions. 

Persis, please go ahead.

MS. YU: Thank you. I mean, I think, 

you know, one of the things that we've we've talked a 

lot about is, of course, that these forbearance, that 

the forbearances that folks are getting steered into are 

the ones that are basically excluded. And I, you know, 

one of the things that's come up in some of our 

conversations and I don't know if it's been explicitly 

stated at the table, is that like, how do folks actually 

make these payments right in the Hold Harmless? I mean, 

so first of all, I have a lot of logistics questions 

about the Hold Harmless period. But how do people make 

these payments if we've already determined that they're 

already making the payments that they can afford? And 

this is not this is my not my point, but it's been said 

around and I want to make sure that it said on the 

public record that this is a really big concern about 
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Negotiated Rulemaking - 12/10/21

really the logistics of how this would work. It sounds 

like, I'm curious about whether or not there is another 

avenue to get these proxies like Joe mentioned, right? I 

think that there's a way that we can move I think there 

is a way we can move forward. I don't know if we can 

move forward in the next 50 minutes, but like, it sounds 

like there is a way that we can figure out a way to 

count these payments without this kind of nearly 

impossible process where borrowers, you know, I'm 

thinking about like my clients who even, you know, with 

a $10 payment, if they've been, I've had clients who've 

been steered into forbearances for 5, 10 years, right? 

So like even a $10 payment over a 10 year period is 

going to be prohibitively expensive for many of them, 

right? How are they going to make those payments? How 

are we going to ensure that that we actually do have a 

way for that time to count? And are there proxies? You 

know, the 24 months, I think, is a, you know, is a 

reasonable place to start of thinking about what can we 

think to identify folks who probably were steered 

because I think this really is the population that we 

need to be concerned about. I very much appreciate the 

other deferments and forbearances that have been added. 

I think that they are huge problems, but like but really 

the crux of the problem is the folks who have been 
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Negotiated Rulemaking - 12/10/21

steered and I'd love to think creatively about ways that 

we can identify folks. And and so whether or not in the 

next 50 minutes, if we're just spit balling what could 

that look like or or offline through the process. But I 

think this is really where we have the majority of our 

concerns. And of course, this is a concern that we have. 

It's mirrored in PSLF and in IDR, especially as those 

two both are and should be identical in this regard.

MS. MACK: Thank you, Persis. Heather 

our PSLF advisor has come to the table, please go ahead 

Heather.

MS. JARVIS: Just in response to 

Daniel's inquiry. I was going to mention, my experience 

has been that this affects graduate and professional 

borrowers in residency circumstances. For veterinarians, 

for example, internships that are based on campus within 

the context of a graduate or professional program. And I 

see you nodding your head and and my experience has 

been, just as you say, where there are some students 

have been successful in removing their loans from an inschool deferment because they are working full time. But 

then if they are also taking classes more than half 

time, the in-school deferment status will then be again 

processed automatically and they will and can request 

that it be lifted. But then we see circumstances where 
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Negotiated Rulemaking - 12/10/21

people have one month here and there that is in 

deferment and they're missing payments as they go due to 

that that auto process of in-school deferment status.

MS. MACK: Thank you, Heather. 

Bethany, your hand was up, it went down, just want to 

make sure that's not inadvertent and I get to you if 

you're intending a comment.

MS. LILLY: I'm echoing Persis on 

this. It's the Hold Harmless that I think most people 

are hung up on because complexity wise it's so hard for 

people to get through that. I mean, if you're on Social 

Security disability insurance, I mean, hopefully you'd 

get captured by TPD, but that's not going to capture 

seniors. That's not going to capture people on 

retirement benefits who are on fixed income and aren't 

going to be able to afford the payments. Like I, I 

appreciate the Department trying to come up with 

solutions here. I really, really do. But I just the 

solution that's been offered is not going to work for 

low income folks who you're targeting. So that's that's 

my issue here. Everything else, I'm a big thumbs up on. 

Thank you, guys. This is great.

MS. MACK: Thank you, Bethany. Joe, I 

see your hand.

MR. SANDERS: Yeah, just to put a 
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finer point on what Bethany just said, if you couldn't 

get into IDR in the first place and you got steered into 

a forbearance, you're not going to be able to make a 

Hold Harmless payment that retroactively addresses that.

MS. MACK: Thank you, Joe. Jennifer, I 

know these comments were in response to to you seeking 

more clarification or asking if they were anything else 

on issue four, does the Department now have what you 

need from the committee in response to that question?

MS. HONG: Yeah, I'm understanding 

that you want us to contemplate inclusion of in-school 

deferment, which was a deliberate exclusion. We just we 

didn't put it in here in the proposed language. I 

understand that you want us to consider residencies 

forbearances in particularly this Hold Harmless 

provision that we proposed and find a solution a better 

solution for borrowers that have been improperly steered 

into forbearances. So thank you for that feedback. I see 

Daniel's hand.

MS. MACK: I do as well. Daniel, 

please.

MR. BARKOWITZ: So I think I've argued 

myself, I'm I'm tired, It's been a long week. I think 

I've answered my own question. So let me try this out on 

you Jennifer. If I look at section six, what I think I'm 
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Negotiated Rulemaking - 12/10/21

reading is that if you're not covered under one of the 

other types of deferment forbearances that we've listed 

as being automatically counted as a period of payment. 

Then you can make a payment to hold yourself harmless, 

and that would allow someone who's in school deferment 

who was employed to make that payment, I think it's time 

reading that. So so again, the way I see this, then a 

student who was in school, deferred, could make a 

payment. But I guess I'm now questioning why an inschool deferment wouldn't count, as one of those called 

out pieces under the deferment or forbearances that 

would count. So why are we requiring someone to make a 

payment if they're otherwise employed, isn't the point 

here, their employment rather than their payment status. 

How is that any different than any other type of 

deferment or forbearance? So I'm still I'm still 

struggling with where the in-school deferment falls, but 

I understand that someone who is in school deferment 

could make payments under this proposal to catch up. But 

I would prefer them not to have to make payment if the 

whole point here is the employment qualification is what 

categorizes them.

MS. MACK: Thank you, Daniel. 

Jennifer, did you have a response to that?

MS. HONG: So, I, so I was answering 
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your initial question about the inclusion in making 

payments if you receive any of the phone deferment or 

forbearances. Remember throughout the course of this our 

session, we expanded that list. We didn't come forward 

with that list initially, you know, and so we we just we 

didn't have in-school deferment on there. And I think I 

think just I realized, we realized, that there are 

individuals that work full time and are in school full 

time and, you know, could still be in qualifying 

employment, and your your point is well taken. We just 

didn't include it in this proposed language.

MS. MACK: Thank you. Jaye, please go 

ahead.

MS. O'CONNELL: So I just wanted to 

comment on the, I mean, forbearance steering and 

malfeasance has been a common theme, it's very hard for 

me to hear. You know, we as a nonprofit state agency, 

our staff are public servants. Some of them eligible for 

Public Service Loan Forgiveness. And like we, we show up 

with good intentions to not harm borrowers. And I 

thought as I was reading the Department's comment bubble 

on the Hold Harmless provision that it wasn't requiring 

proof of steering. And the reason I bring that up is 

just that, hindsight is 20/20 and a lot of cases, and 

there are a lot of provisions available, a lot of 
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complexity in our student loan programs. So I mean, I 

think about the Peace Corps public comments where it 

wasn't servicers, but the Peace Corps saying, you know,

you get three years of subsidy and a Peace Corps 

deferment. I don't, you know, I don't look at that as 

malfeasance. That is something that is true and it's an 

entitlement under the law. So I just I just wanted to 

add there are properly granted deferments, forbearances, 

administrative forbearances. There are things that we as 

servicers do to help borrowers in temporary and 

different situations. And I just I I was thinking as I 

read that Hold Harmless understanding the complexity of 

student loan servicing is complex. I do understand that, 

but that it didn't it wasn't really about the that you 

could get those payments back, even if you you chose an 

option in the past, and you now want to buy it back, so 

I just was looking for that clarity.

MS. MACK: Thank you, Jaye. Persis, I 

see your hand.

MS. YU: Thank you. I would like to 

respond to that and I think that I mean, I so I think 

it's never really helpful to to to really, you know, 

talk about intentions necessarily. I I'm I am okay with 

assuming people's best intentions. And I mean, I think 

obviously the example of the Peace Corps, right? Like, I 
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Negotiated Rulemaking - 12/10/21

100% believe that the Peace Corps had really good 

intentions in in telling borrowers to put themselves in 

these deferments. I think the problem is that despite 

the good intentions, borrowers wound up in plans that 

were ultimately not the most helpful for them. And I 

think that this is one of the reasons why, you know, 

eliminating the requirement that a borrower, you know, 

prove some sort of steering is very important because I 

think that steering will, I think the most egregious 

examples are certainly there are plenty of examples, and 

I'm sure Joe will give many of them of very egregious 

examples where borrowers have been steered for malicious 

purposes. But I think, you know, there are lots of ways 

that steering occurs. They occur by servicers. They 

apparently occur by the Peace Corps. And you know, our 

clients get steered by default management companies all 

the time. And at the end of the day, the problem is is 

that the borrowers were harmed. It's not about the 

intentions of whoever did it. You know, and I think that 

that decoupling, you know, this Hold Harmless from, you 

know, this malfeasance from this intention piece is 

actually very helpful for that because at the end of the 

day, what we want is we want borrowers to be able to get 

the benefits that they were entitled to. And so, you 

know, whether or not there was malfeasance, whether or 
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not it was a very well-intentioned, you know, I mean, 

I've talked to many earnest customer service reps who 

were just wrong, right? And at the end of the day, they 

were just incorrect. And we need to make sure that 

borrowers are able to get the most advantageous options 

for them. And when that doesn't happen, we need to be 

able to make them whole. And so I think that's what this 

is that's what I know that we're trying to do. I think 

we just have not quite gotten there yet.

MS. MACK: Thank you, Persis. Joe, 

please.

MR. SANDERS: Thanks. So, you know, I 

think that I think the Jaye raises an important point 

here. What about somebody who just their car broke down 

and they needed a break from payments for three months? 

They could normally afford the payments and they just 

got to pay for a new carburetor. Right? So they go into 

a forbearance for three months, they pay for the 

carburetor and then they're back making their payments 

right? That's not the type of forbearance that state AGs 

think needs to be addressed through this regulation, 

right? The proxy that we've proposed is 24 months in 

forbearance without making a full payment. And let me 

get into the reasoning behind that a little bit, right? 

So if you have somebody who has been in any kind of 
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forbearance, whatever kind, all the various types, 

right, for 24 months, that's an indication that 

forbearance was not the right type of repayment plan for 

that individual. Because a forbearance is meant to deal 

with a very short term economic problem. If you're in 

forbearance for 24 months, there's a bigger structural 

financial problem here, and somebody along the way 

should have said, have you considered Income Driven 

Repayment? And, you know, looking at it through that 

lens, we think especially retroactively, right, not not 

on a prospective things, you couldn't have somebody that 

read the reg and said, ha ha, I'm going to get 24 months 

of forbearance in free time and IDR. Just retroactively, 

we think that's eminently reasonable to say those people 

should have been in IDR and those that time should count 

towards IDR and by extension PSLF. And, you know, I, you 

know, we don't have time here today, but I would be 

happy to continue to engage with the Department, my 

constituency we would be happy to engage with the 

Department, to see, you know, if you're talking about 

PSLF and the 97% denial rates, if you were to parse out 

the different types of reasons that payments didn't 

count, you know, would that, you know, how much how how 

many of those missed payments have been addressed by the 

types of forbearances and deferments that the 
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Department's already included? How many would be 

addressed by the proposal that was put forward in the 

red line that we did on Wednesday? How many would be 

addressed by the by the proposal that I put forward by 

any other proposal that was put forward? But I think 

that that is potentially something that's knowable and 

could be worked out so, happy to continue to engage in 

this discussion. But that's just a little more 

background on the reasoning of of the proxy that we 

proposed.

MS. MACK: Thank you, Joe. Justin.

MR. HAUSCHILD: Yeah. So I'm by no 

means an expert on all these constituencies here, we're 

talking about forbearances and steering. I do want to 

say that I voted in support of PSLF, but I do have I 

share the concerns that are being raised by folks, 

including including Joe. That being said, I did vote in 

favor of it, I stand by that vote, my constituency, but 

I just want to try to get a better understanding of the 

Department's hesitancy here to include things like the 

general forbearance. Because, you know, and maybe, maybe 

it's this idea, this moral idea, but I just don't 

understand. I think Joe's raised a lot of good points 

here. They're not, generally speaking, always the right 

plan to begin with. They are temporary in nature. My 
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understanding is that they're discretionary, you know, 

they're not. So I just don't. I guess I'm wondering, is 

the Department's reluctance to include forbearances 

speaking more to the appropriateness of forbearances as 

a concept rather than whether or not they should count 

towards IDR or PSLF?. I'm just really struggling with 

what I feel like is an odd tension here because 

forbearance is the thing, forbearance is something we 

allow, there are benchmarks by which a forbearance is 

granted, they are discretionary in nature, they are 

temporary in nature. I just I'm just not understanding 

it. And maybe it's because I'm not understanding 

something fundamentally. But anyway, I just wanted to 

throw that out there.

MS. MACK: Thank you, Justin.

MS. HONG: Yeah, I mean, I think I 

think we touched upon this earlier, and I just to remind 

you, you know, we we hadn't included all these 

deferments and forbearance initially. So, you know, 

we've added a lot here in terms of counting payments 

when in times when you're in forbearance or deferment, 

but. But I think it was Brian in OGC spoke to the 

discretionary nature of granting some of these 

forbearances, and it's, you just request it and you get 

it, so yeah, there is there is concern that we're not 
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upholding the statute because someone could conceivably 

just put themselves on forbearance and count all those 

payments toward public service. So we so we want to we 

do want to balance these concerns with effective 

guardrails as well.

MS. MACK: Thank you, Jennifer. 

Heather.

MS. JARVIS: I'd like to also raise 

the subject of the difference between the making of 

payments and the counting and tracking of payments. And 

I understand that the purview of this committee is the 

regulatory language and not supervision of the servicers 

or the policies with regard to the contracts with the 

servicing companies. But I would indicate that, you 

know, one of the problems borrowers have faced in 

qualifying for Public Service Loan Forgiveness is 

external to the complexity of the rules from the 

borrower perspective, and there are many instances in 

which borrowers have made payments that ought to have 

been counted as qualifying that were not in fact counted 

as qualifying by FedLoan servicing initially on the 

first pass or sometimes on the second pass. And we've 

had various levels of success in raising questions and 

have had some support from the Department in following 

through on those issues. So one of my hesitancies is 
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with the way that this proposed language is presented is 

not so much that it doesn't include an appropriate 

number of deferments and forbearances, as I do 

appreciate that the Department has given thoughtful 

consideration to expanding the circumstances in which 

payments can be counted or or more specifically, in 

which months can be counted. Because we should 

acknowledge that although the statute says 120 payments, 

a payment does not mean a transferring of money from the 

borrower to the servicer in every case, and the 

Department acknowledges that. A payment under an Income 

Driven Plan can be of zero dollars. A payment can count 

during certain periods of forbearance, as well as as 

Department is acknowledged. So one of the problems is 

how do we allow servicers the opportunity to 

successfully administer these programs? And one way to 

do that would be to simplify the regulations. And and 

although we have expanded the case where payments can be 

counted, we have also made it a lot more complicated. 

Where what the Department is doing now with the limited 

waiver is it in fact brilliantly simple and is why it 

should be able to be so successful with it. You look to 

see when did borrowers enter a repayment status and if 

they were in a repayment status and working full time in 

public service, then they're progressing in time towards 
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forgiveness. And I think there's a way to write the 

regulations in order to assist the servicers in the 

difficult task of counting payments accurately for 

borrowers.

MS. MACK: Thank you, Heather. Again, 

Jennifer, I'd ask you, do you have everything on behalf 

of the Department in terms of the responses around issue 

four that we've revisited?

MS. HONG: No, this is very helpful.

MS. MACK: Anything else that you 

wanted to circle back to Jennifer?

MS. HONG: No.

MS. MACK: Okay, then I would ask, are 

there any final comments from the committee? Alright. 

Joe, please,

MR. SANDERS: I just want to thank the 

Department for taking up these extremely important 

issues for borrowers, regardless of whether we reach 

consensus or not, it's encouraging for the Department to 

be searching for solutions, and I want to thank them for 

having all of us here and for trying to find a way 

forward.

MS. MACK: Thank you for that, Joe 

David, please.

DR. TANDBERG: Is is this final 
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comments on this issue or final comments generally?

MS. MACK: I was just seeing the 

question in the chat as well.

DR. TANDBERG: Yeah, Daniel asked the 

same thing.

MS. MACK: Yeah, he did. I'm inviting, 

I think, final final comments because we just concluded 

the conversation around four.

DR. TANDBERG: Yeah, in final final 

comment spirit, first, just a huge thank you to 

Jennifer. Being the federal negotiator at a negotiated 

rulemaking is an impossible impossibly difficult job and 

you've done an absolutely outstanding job. So I 

appreciate everything you've given to the committee. And 

then also huge, huge, thank you to all the Department's 

staff. These are crazy, busy, crazy, difficult times 

during negotiated rulemaking and they've done an 

outstanding job. And then just a follow up, same same 

message that Joe shared. Just appreciate the Department 

picking up on these incredibly important issues and 

approaching it from the perspective of what's best for 

the students. It's been a privilege and an honor to 

participate.

MS. MACK: Thank you, David. Daniel, 

please.
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MR. BARKOWITZ: I will echo that, and 

I'll add to my list a deep appreciation to the 

facilitators and the staff from FMCS. This is not an 

easy job at all, and so I will I will add to the group 

of folks that David is highlighting. I'll also say, you 

know, I had some some concerns about a virtual 

negotiation. And while there were certainly pieces that 

we missed being virtually, I appreciate the opportunity 

to serve virtually. I hope the Department considers in 

the future when able to move back to an in-person, I 

think we lose the opportunity to be in touch with each 

other. However, even in person, I think the public 

nature of these negotiations has been really informative 

and helpful for the general public. And I know that 

following the Twitter feed, it's been a moment by 

moment, blow by blow conversation tracking online. And 

that you know that the ability to have these 

conversations in the public eye, I think, is really 

important. So I would I would really encourage us to 

balance a need to be in person and a desire to be in 

person, but still maintaining the public ability for 

folks to log in and view.

MS. MACK: Thank you, Daniel. At this 

time, I would love for everyone to turn on their cameras 

so that we can truly recognize you all as we close out 
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this virtual negotiated rulemaking session. And with 

that Jennifer, I'd love to ask you if you have any final 

remarks on behalf of the Department.

MS. HONG: I do, thank you, Kayla. 

First of all, it's it's been a real honor to serve as a 

federal negotiator. As you all describe, these are 

important issues, the issues that we all care about here 

at the Department and just every step of the way being 

with you in your commitment, engaging with you in these 

discussions. I realize we we didn't reach consensus on 

everything, but we reached consensus on four items and 

on two and then on four other items, we were very close. 

And the other issues, again, we look forward to 

continuing this conversation by way of the NPRM. As a 

reminder on the issues that we did reach consensus on, 

we would expect that you not comment comment negatively 

on those issues. And we realized that this is this is 

hard, but we we embrace it because this a real testament 

to democracy and public input and we we really look 

forward to it. I also want to thank FMCS for staying 

with us throughout these three sessions also. You met 

some of the staff at the Department on camera. There's a 

whole crew of other people that are tuning in, taking 

notes, listening, going back, drafting, poring over your 

proposals, talking to people about it. So I just want to 
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say thank you to them as well and thank you to the 

students and families that are listening in and working, 

and we're trying to do the best by you as well. So thank 

you.

MS. MACK: Alright, thank you, 

Jennifer. On behalf of FMCS we want to thank the 

Department of Education, Jennifer, general counsel, are 

screen sharers, the folks live editing, and all of the 

folks behind behind the scenes. We do want to thank the 

committee for your participation, your passion, your 

patience with the process and all of the expertise. 

We've learned a great deal from you. We would like to 

give a special thanks to the advisors, Heather and Raj 

and all that they contributed to to this process. We 

want to thank the subcommittee for all their work that 

they did during their sessions. All of the public 

commenters who chimed in and shared their stories and 

their ideas, and all of the constituencies in the 

public, tuning in, logging in and paying attention. So 

on behalf of FMCS, myself, Cindy, Brady, Emil, and 

Kevin, we've greatly appreciated the opportunity to work 

with each and every one of you through an important 

process on consequential issues with a group that we 

will never forget. I can promise you that, so thank you 

all. And that concludes this round of negotiated 
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rulemaking.

Appendix

Department of Education

Office of Postsecondary Education

Zoom Chat Transcript

Affordability and Student Loans Committee

Session 3, Day 5, Afternoon, December 6, 2021

DISCLAIMER:

Note: The following is the output of transcribing from a 

recording. Although the transcription is largely accurate; 

in some cases, it is incomplete or inaccurate due to 

inaudible passages or transcription errors. It is posted as 

an aid to understanding the proceedings at the meeting, but 

should not be treated as an authoritative record.

From Marjorie (P), 4 Yr Insts. (she/her) to Everyone:

I’m here but internet is still not working well.

From Persis (P) - Legal Aid (she/her) to Everyone:

I am coming back to the table for legal aid

From Michaela Martin to Everyone:

Stan is at the table

From Misty (P) Priv. Non-Profit to Everyone:

Dr. Mc Tier will be primary for this topic

From Persis (P) - Legal Aid (she/her) to Everyone:

Fuzzy slippers!

From Jen(she/ella): (A) Student borrowers to Everyone:

awww

From Jen(she/ella): (A) Student borrowers to Everyone:
73

Negotiated Rulemaking - 12/10/21

lol

From Stan (A) Ind. Students to Everyone:

Yes to Neg Reg Happy Hour

From Dixie (P) Dependent Students (ella/she) to 

Everyone:

Fuzzy slippers and socks all throughout neg reg >

From Stan (A) Ind. Students to Everyone:

Thank you for that David and Daniel.

From Daniel (P) - Fin Aid Admin (he/him) to Everyone:

+1 David. I don't want to limit access.

From Bethany (P) - Disability (she/hers) to Everyone:

+1 to Stan re: the necessity for data to ensure equity

From Jeri (P) Student Borrowers (she her, they) to 

Everyone:

+1 Stan!

From Dixie (P) Dependent Students (ella/she) to 

Everyone:

+1 Stan

From Joe (P) State AGs to Everyone:

+1 Jennifer

From Jeri (P) Student Borrowers (she her, they) to 

Everyone:

+1 Jennifer!

From Dixie (P) Dependent Students (ella/she) to 

Everyone:

+1 Jennifer
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Negotiated Rulemaking - 12/10/21

From Bethany (P) - Disability (she/hers) to Everyone:

+1 to Jennifer as well

From Michaela Martin to Everyone:

+1 Jennifer

From Stan (A) Ind. Students to Everyone:

Thank you, David.

From Anne (P), State DOCs to Everyone:

Thank you David!

From David (P) - State hi ed agencies to Everyone:

Thank you for your work, Stan, and your advocacy.

From Suzanne Martindale (A) state regulators to 

Everyone:

+1 david

From Josh (A), Legal Aid (he/him) to Everyone:

I’m at the table for a few minutes for legal aid

From Daniel (P) - Fin Aid Admin (he/him) to Everyone:

Thanks for your comment, Aaron. That helps...

From Persis (P) - Legal Aid (she/her) to Everyone:

I'm back at the table

From Daniel (P) - Fin Aid Admin (he/him) to Everyone:

Again the only submission would be on the first two 

programs at two locations. But I appreciate the 

walkthrough...

From David (P) - State hi ed agencies to Everyone:

I would also add that for public institutions who want 

to offer prison education programs would also (in 
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Negotiated Rulemaking - 12/10/21

almost every case) need to get approval of the program 

from a state higher education agency and/or system 

office. So one additional level of review and quality 

assurance.

From Michaela Martin to Everyone:

I am not understanding the crux of Heathers argument. 

What is the sticking point? Just the indicators?

From Justin (P) Servicemembers and Veterans to Everyone:

thanks, Bethany, for that question. I was wondering 

something similar.

From Daniel (P) - Fin Aid Admin (he/him) to Everyone:

I can share the name of the association I have heard 

from (I have their permission). AACC (American 

Association of Community Colleges) has heard from 

numerous institutions with concerns...

From Michaela Martin to Everyone:

So it's about the institutions having to allow a 

program to reapply...but isn't it their program?

From Michaela Martin to Everyone:

+1 Stan

From Bethany (P) - Disability (she/hers) to Everyone:

Yeah, I think Stan's hitting on why I was confused.

From Bethany (P) - Disability (she/hers) to Everyone:

+1

From Bethany (P) - Disability (she/hers) to Everyone:

like, why does it matter to accreditors?

From Joe (P) State AGs to Everyone:

+1 Stan
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Negotiated Rulemaking - 12/10/21

From Jeri (P) Student Borrowers (she her, they) to 

Everyone:

+1 Stan

From Michaela Martin to Everyone:

I am back at the table for ind students

From David (P) - State hi ed agencies to Everyone:

I'd like to start with IDR

From Joe (P) State AGs to Everyone:

+1 Daniel

From Suzanne Martindale (A) state regulators to 

Everyone:

+1 daniel

From Jeri (P) Student Borrowers (she her, they) to 

Everyone:

+1 Daniel

From Misty (P) Priv. Non-Profit to Everyone:

I'm back as primary

From Misty (P) Priv. Non-Profit to Everyone:

And +1 on Daniel let's start with IDR

From Daniel (P) - Fin Aid Admin (he/him) to Everyone:

Can I also clarify that because there is no public 

comment period, we go until 4:00 today with our 

negotiation? Earlier, Dr. McTier implied we ended at 

3:30... Just trying to confirm.

From Misty (P) Priv. Non-Profit to Everyone:

I think Dr. Mc Tier was accounting for breaks that's 

our understanding that we go til 4
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Negotiated Rulemaking - 12/10/21

From Michaela Martin to Everyone:

Great question

From David (P) - State hi ed agencies to Everyone:

My operating assumption has been 4:00 ET.

From Brady FMCS Facilitator to Everyone:

To confirm, there is no public comment session today.

From Jeri (P) Student Borrowers (she her, they) to 

Everyone:

Thank you Bethany

From David (P) - State hi ed agencies to Everyone:

So, Brady, that means we negotiate until 4:00, 

correct?

From Bethany (P) - Disability (she/hers) to Everyone:

+1 on defaulted borrowers + FFEL

From Brady FMCS Facilitator to Everyone:

That is correct.

From Bethany (P) - Disability (she/hers) to Everyone:

And also Peace Corps borrowers as public comments made 

clear.

From Bethany (P) - Disability (she/hers) to Everyone:

re: things left out of the PSLF Waiver

From David (P) - State hi ed agencies to Everyone:

+1 to Bethany and Persis

From David (P) - State hi ed agencies to Everyone:

+1 Joe
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Negotiated Rulemaking - 12/10/21

From Bethany (P) - Disability (she/hers) to Everyone:

+1 to Joe re: payment counting

From Bethany (P) - Disability (she/hers) to Everyone:

And Michaela!

From Justin (P) Servicemembers and Veterans to Everyone:

+1 David

From Bethany (P) - Disability (she/hers) to Everyone:

+1 David

From Bethany (P) - Disability (she/hers) to Everyone:

See the discussion we just had.

From Michaela Martin to Everyone:

+1 /\ Bethany

From Christina Tangalakis, she/her (A) 2 year public to 

Everyone:

thank you Heather

From Michaela Martin to Everyone:

Stan is in for Ind students

From Jaye (P) FFEL Agencies to Everyone:

Can others have a quick break?

From Anne (P), State DOCs to Everyone:

Thank you everyone!!!!!

From Stan (A) Ind. Students to Everyone:

Thank you everyone.

From Persis (P) - Legal Aid (she/her) to Everyone:

Thank you so much to the subcommittee!!!!
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Negotiated Rulemaking - 12/10/21

From Suzanne Martindale (A) state regulators to 

Everyone:

congrats to the subcommittee!

From David (P) - State hi ed agencies to Everyone:

+1 Persis

From Justin (P) Servicemembers and Veterans to Everyone:

Thank you to the subcommittee

From Bethany (P) - Disability (she/hers) to Everyone:

Echoing thanks to the subcommittee!

From Dixie (P) Dependent Students (ella/she) to 

Everyone:

Thank you to the subcommittee!!! CONGRATS,

From Stan (A) Ind. Students to Everyone:

Thank you Jeri.

From Persis (P) - Legal Aid (she/her) to Everyone:

Josh is back at the table for legal aid

From Jessica Barry, Proprietary (P) to Everyone:

I’m back at the table, too

From Persis (P) - Legal Aid (she/her) to Everyone:

I'm back

From Suzanne Martindale (A) state regulators to 

Everyone:

+1 on temp checks within an issue

From Jessica Barry, Proprietary (P) to Everyone:

Carol is subbing back in
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Negotiated Rulemaking - 12/10/21

From Bethany (P) - Disability (she/hers) to Everyone:

+1 to Persis on complexity of the Hold Harmless

From Bethany (P) - Disability (she/hers) to Everyone:

I would be ��� on all of the addiitions

From Bethany (P) - Disability (she/hers) to Everyone:

my concern is also the hold harmless in this section

From David (P) - State hi ed agencies to Everyone:

+1 on hold harmless

From Michaela Martin to Everyone:

+1

From Michaela Martin to Everyone:

and +1 Joe. Well put

From Michaela Martin to Everyone:

The road to hell is paved with good intentions

From Suzanne Martindale (A) state regulators to 

Everyone:

+1 heather

From Joe (P) State AGs to Everyone:

+1 Heather

From Bethany (P) - Disability (she/hers) to Everyone:

+1 Heather

From Daniel (P) - Fin Aid Admin (he/him) to Everyone:

Final comments overall or final comments on Issue 4/5?

From Stanley Andrisse to Everyone:
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Negotiated Rulemaking - 12/10/21

It's been a pleasure serving with you all. I hope that 

we can stay in touch ����.

From Suzanne Martindale (A) state regulators to 

Everyone:

+1 david, thank you Jennifer!

From Joe (P) State AGs to Everyone:

+1 Daniel

From Misty (P) Priv. Non-Profit to Everyone:

Agreed Jennifer you've been great!!

From Joe (P) State AGs to Everyone:

Thanks to all the negotiators

From Jeri (P) Student Borrowers (she her, they) to 

Everyone:

Thank you all!

From Heather (P) - Accrediting Agencies to Everyone:

Been a great experience with an amazing group of 

people - many thanks to all of you and especially the 

Department and the facilitators!

From Michaela Martin to Everyone:

Thank you to Jennifer and ed staff!

From Heather-PSLF Advisor to Everyone:

Thanks go to ED and FMCS!

From Joe (P) State AGs to Everyone:

Thank you FMCS

From Suzanne Martindale (A) state regulators to 

Everyone:
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Negotiated Rulemaking - 12/10/21

+1 Daniel!

From Bethany (P) - Disability (she/hers) to Everyone:

Many many thanks to all of the ED folks + FMCS!

From David (P) - State hi ed agencies to Everyone:

Yes, thank you FMCS!!!

From Misty (P) Priv. Non-Profit to Everyone:

Yes thank you FMCS!

From Dixie (P) Dependent Students (ella/she) to 

Everyone:

Thank you to FMCS and ED for all their hard work. As 

well as the negotiators!

From Michaela Martin to Everyone:

Thank you FMCS

From Anne (P), State DOCs to Everyone:

It's been an incredible process to watch and be a part 

of. Thank you to everyone! Congratulations to ED and 

FMCS for a job well done!

From Will (A) FFEL Agencies to Everyone:

Agreed that an inperson would be better

From Bobby (P) - 2 Year Pubilc Colleges to Everyone:

Thank you Jennifer and the department of ED. Thank 

you all on the committee, this has been quite the 

experience and I learned so much from this and each of 

you. Please keep in touch. and of 

course thanks to FMCS

From Noelia (A), Minority Serving Inst. to Everyone:

Thanks to FMCS, Dept of Ed, and all the negotiators! 

Have a great holiday season!
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Negotiated Rulemaking - 12/10/21

From David (P) - State hi ed agencies to Everyone:

Please go back to in person!

From Persis (P) - Legal Aid (she/her) to Everyone:

Echo the thanks to ED & FMCS

From Michale (A) Accreditation to Everyone:

Totally agree with all of the praise for our hard 

working team - all around. Thank you all.

From Josh (A), Legal Aid (he/him) to Everyone:

+1 on thanks to ED, FMCS, and the other negotiators

From Jaye (P) FFEL Agencies to Everyone:

Thank you for the opportunity. I am impressed with 

the fact that we were successful in covering all the 

Issue Papers at the level we did.

From Justin (P) Servicemembers and Veterans to Everyone:

+1 in thanking ED, FMCS, and the other negotiators

From David (P) - State hi ed agencies to Everyone:

+1 praise for FMCS

From Joe (P) State AGs to Everyone:

Thanks you advisors!

From Bethany (P) - Disability (she/hers) to Everyone:

Thank you both!

From Michale (A) Accreditation to Everyone:

+1 to future "in-person" neg reg, Zoom cannot replace 

the "hallway conversations" where so much happens

From Josh (A), Legal Aid (he/him) to Everyone:

+1 on subcommittee, advisors, and public commenters 
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Negotiated Rulemaking - 12/10/21

too!

From Persis (P) - Legal Aid (she/her) to Everyone:

+1 Josh

From Jessica Barry, Proprietary (P) to Everyone:

I just want to thank The Department for giving me this 

opportunity to represent our sector and share our 

perspectives. Thank you to my fellow negotiators and 

advisors for your dedication to the process. I also 

want to thank my alternate, Dr. Carol Colvin, and our 

constituents for their incredible focus and unwavering 

commitment to the great students and institutions of 

our sector.

From Daniel (P) - Fin Aid Admin (he/him) to Everyone:

I will miss your daily emails Kayla!