Negotiated Rulemaking - 12/09/21

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 DEPARTMENT OF EDUCATION

 OFFICE OF POSTSECONDARY EDUCATION

 AFFORDABILITY AND STUDENT LOANS COMMITTEE 

 NEGOTIATED RULEMAKING SESSION 3, DAY 4, MORNING

December 9, 2021

On the 9th day of December, 2021, the

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

to 12:00 p.m., before Jamie Young, Shorthand Reporter

in the state of New Jersey.
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Negotiated Rulemaking - 12/09/21

P R O C E E D I N G S

MR. ROBERTS: Good morning, everyone, 

and welcome to day four of week three of this negotiated 

rulemaking session hosted by the Department of 

Education. My name is Brady Roberts. I'll be 

facilitating this morning and I would like to move us 

quickly into a roll call so we can begin the subject of 

the day. So I'm going to ask folks to turn on their 

videos and just briefly say good morning as their name 

and constituency group is called out. So first off, we 

have Dr. Heather Perfetti representing accrediting 

agencies.

DR. PERFETTI: Good morning, everyone.

MR. ROBERTS: And her alternate, Dr. 

Michale McComis.

MR. MCCOMIS: Good morning. 

MR. ROBERTS: Good morning, we have 

Ms. Jaye O'Connell representing FFEL lenders and or 

guarantee agencies.

MS. O'CONNELL: Morning.

MR. ROBERTS: Morning. And her 

alternate Mr. Will Shaffner.

MR. SHAFFNER: Good morning, everyone, 

48 more hours.

MR. ROBERTS: Good morning. Next up, 
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Negotiated Rulemaking - 12/09/21

we have representing financial aid administrators at 

post-secondary institutions. Mr. Daniel Barkowitz.

MR. BARKOWITZ: Happy holidays and 

good morning.

MR. ROBERTS: Good morning. Happy 

Holidays. And his alternate Ms. Alyssa Dobson.

MS. DOBSON: Morning, everyone.

MR. ROBERTS: Good morning. 

Representing four-year public institutions of higher 

education, we have Dr. Marjorie Dorime-Williams.

DR. DORIME-WILLIAMS: Good morning, 

everyone. Glad to be back.

MR. ROBERTS: Good morning. And her 

alternate Ms. Rachelle Feldman. Right. Next up, we have 

representing independent students, Ms. Michaela Martin.

MS. MARTIN: Good morning, I'll be on 

camera shortly.

MR. ROBERTS: No worries. Good 

morning. And her alternate Dr. Stanley Andrisse.

DR. ANDRISSE: Good morning, everyone. 

Pleasure to be here with you today.

MR. ROBERTS: Good morning Stan, 

likewise. Representing groups representing individuals 

with disabilities, we have Mr. John Whitelaw.

MR. WHITELAW: Good morning, everyone. 
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I'll be subbing for Bethany. She will hopefully rejoin 

us this afternoon.

MR. ROBERTS: Thank you, John. Good 

morning. Representing legal assistance organizations 

that represent students and or borrowers, we have Ms. 

Persis Yu.

MS. YU: Hello, everyone.

MR. ROBERTS: Hello, and her alternate 

Mr. Joshua Rovenger.

MR. ROVENGER: Good morning, everyone.

MR. ROBERTS: Good morning, 

representing minority serving institutions, we have Ms. 

Noelia Gonzalez.

MS. GONZALEZ: Good morning.

MR. ROBERTS: Good morning, very early 

seven a.m. on the West Coast.

MS. GONZALEZ: Very early. And dark 

and rainy.

MR. ROBERTS: We're glad to have you 

and our other West Coast friends. Representing private 

nonprofit institutions of higher education, we have Ms. 

Misty Sabouneh.

MS. SABOUNEH: Morning, happy 

Thursday, everyone.

MR. ROBERTS: Happy Thursday. And her 
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Negotiated Rulemaking - 12/09/21

alternate Dr. Terrence McTier, Jr.

DR. MCTIER: Morning.

MR. ROBERTS: Good morning. 

Representing proprietary institutions, we have Ms. 

Jessica Barry.

MS. BARRY: Good morning, everyone.

MR. ROBERTS: Morning and her 

alternate Dr. Carol Colvin.

MS. COLVIN: Morning.

MR. ROBERTS: Morning. Representing 

states, state attorneys general, we have Mr. Joseph 

Sanders.

MR. SANDERS: Good morning, everyone. 

Glad to be here with you all.

MR. ROBERTS: Morning, Joe. And his 

alternate Mr. Eric Apar.

MR. APAR: Good morning, everyone.

MR. ROBERTS: Morning. Representing 

state, higher education, state higher education, 

executive officers, state authorizing agencies and or 

state regulators of institutions of higher education and 

or loan services winning the longest title for 

constituency group, we have Dr. David Tandberg.

DR. TANDBERG: Thank you. Pleasure to 

be here this morning.
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MR. ROBERTS: Morning. And his 

alternate, Ms. Suzanne Martindale.

MS. MARTINDALE: Hi, good morning.

MR. ROBERTS: Good morning. 

Representing student loan borrowers, we have Ms. Jeri 

O'Bryan-Losee.

MS. O'BRYAN-LOSEE: Good morning, 

everybody.

MR. ROBERTS: Morning. And her 

alternate Ms. Jennifer Cardenas.

MS. CARDENAS: Hello, Buenos Dias. 

Good morning, everyone.

MR. ROBERTS: Representing two year

public institutions of higher education, we have Dr. 

Bobby Ayala.

DR. AYALA: Good morning, ladies and 

gentlemen.

MR. ROBERTS: Good morning. And his 

alternate Dr. Christina Tangalakis.

DR. TANGALAKIS: Good morning.

MR. ROBERTS: Good morning. 

Representing U.S. military service members, veterans and 

or groups representing them, we have Mr. Justin 

Hauschild.

MR. HAUSCHILD: Morning, folks, 
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pleasure to be here.

MR. ROBERTS: Pleasure to be with you. 

And his alternate, Ms. Emily DeVito.

MS. DEVITO: Morning, all.

MR. ROBERTS: Morning. Representing 

State Departments of Corrections, we have Ms. Anne 

Precythe.

MS. PRECYTHE: Morning. Good to be 

here. Thank you.

MR. ROBERTS: Morning, Anne. And we 

also have the constituency group dependent students 

represented by Dixie Samaniego and Mr. Greg Norwood. 

They won't be joining us this morning, but we will 

announce them when they join the meeting. We are also 

joined by two advisors who I will announce who have been 

providing expert feedback and guidance on subjects of 

PSLF and economic and or education policy. We have Ms. 

Heather Jarvis.

MS. HONG: Hello. Good morning.

MR. ROBERTS: Morning Heather and Dr. 

Rajeev Darolia.

DR. DAROLIA: Hello. 

MR. ROBERTS: Good morning, Raj. 

Representing the Department of Education, we have Ms. 

Jennifer Hong.
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MS. HONG: Good morning, everyone.

MR. ROBERTS: Good morning. And our 

colleagues from OGC, we have Mr. Brian Siegel among 

others.

MR. SIEGEL: Good morning.

MR. ROBERTS: Good morning. I also 

just want to say, because we are going to be picking up 

with PEP, we are also joined by Ms. Belinda Wheeler 

Wheeler, who served on the subcommittee.

MS. WHEELER: Good day, everyone. Good 

to be here.

MR. ROBERTS: Morning, Belinda. 

Alright. Thank you, everyone so much. Oh, I see. Yes, we 

have Carol joining the table on behalf of proprietary 

institutions. So good morning, Dr. Colvin. I would like 

to pick us up where we left off yesterday on the Prison 

Education Program, and I'd like to first turn it over to 

OGC, to speak on some of the questions that were raised 

around the Clery Act. And as we do that, I just want to 

remind our alternate negotiators if you wouldn't mind 

just turning off your camera for the purposes of the 

live feed. So, Brian, if you are ready, would you care 

to respond to some of the questions that were raised 

yesterday on that issue?

MR. SIEGEL: Sure, I can do that. I 
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discussed this with with Daniel after the session 

yesterday, just so I fully understood his question and 

talked to our Clery Act compliance experts. The Clery 

Act compliance requirements are tied to campuses, so if 

an institution has a campus on a in a within a prison 

facility and owns or controls a building or property in 

that it would be covered by the Clery Act. We don't have 

a legal basis to exclude or to to exclude those 

institutions from requiring from complying with the 

Clery Act or to provide an exception for them. We also 

don't think it would be consistent with the requirements 

of the Clery Act, which basically are to provide 

information to students or faculty who work at the 

institution. We are, however, open to providing 

technical assistance to to the institutions which are in 

that situation and help them structure their situation 

in such a way to mitigate the burden on them, or to find 

a way to comply with the requirements without imposing 

additional burden. From our understanding this as a 

small number of institutions which are in this 

situation. Most institutions providing Prison Education 

Programs don't own or control property. So we think it's 

much easier and better, a better way to handle it on a 

case by case basis, working between the Clery staff and 

the institutions, rather than to try to provide a a 
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broader exception, which we don't have authority to do. 

I also note that if it's a campus. It has it does have 

requirements under other laws, including Title IX, that 

we don't have any authority to address either. So, you 

know, I don't, you know, we understand the issue. We 

appreciate the concern of the institutions. But trying 

to build an exception here, one is outside our authority 

and two, doesn't work for us. So if there are any 

questions, happy to talk about it and otherwise, I turn 

it back.

MR. ROBERTS: Thanks, Brian. Hold on, 

because I do see a hand raised, so Alyssa, please go 

ahead.

MS. DOBSON: Yeah, I think that this 

is sort of a result of our concern of classifying these 

places as a location and, you know, agreeing that if it 

is operating in such a way that it fits the definition, 

as is currently written for secondary location, then 

that makes sense. But when it doesn't, when it's offered 

largely as distance ed and you don't meet those other 

thresholds Brian that you talked about, such as owning 

or controlled by then it shouldn't be classified as a 

secondary location to begin with. And then that does 

eliminate any spillover into these other issues and 

regulations that we're talking about, such as Clery. So 
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I think the best way to sort of fix this and make it 

clear for everyone is not to classify them as a 

secondary location if they are not.

MR. SIEGEL: I think it's important to 

note that the whether or not you determine you define 

them as a secondary location, it's whether or not they 

meet the requirements under Clery as a campus, you know, 

owning or controlling property, as you noted there. 

That's a second requirement there. So from my 

perspective, it's the second question rather than the 

first, which drives the Clery the Clery issue.

MS. DOBSON: So if you read further 

into different pieces and parts of Clery, especially 

geography is one area that I can think of, it does refer 

to your secondary locations as Clery geography, and so 

it's just going to get even more confusing and and 

appear as though you're not really complying with what 

is written.

MR. SIEGEL: Again, I think that's 

something we're happy to deal with on a case-by-case

basis, we think there are ways to limit the burden on 

institutions. Again, we think it's, you know, from our 

understanding, it's just a small amount, a few 

institutions which will actually own or control 

property. But it looks like to us there it would be 
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helpful to have some discussions between those 

individual institutions and not address it in the 

Department and not try to address it through a 

regulation which could have which would likely have some 

unintended consequences.

MR. ROBERTS: Belinda, I saw your 

hand, is this related to the to the current topic of 

campus security? Okay, you're good. Okay. Great. So with 

that, if there's no follow up for OGC, I understand the 

Department just has a very minor technical edit that 

they just want to walk through very briefly. So Aaron, 

if you wouldn't mind sharing the document now and just 

walking through that very briefly.

MR. WASHINGTON: Yes, so under 668.237 

because of the Department removed. Let's see. Well, we 

just had we just had to do a technical edit. So on the 

draft that you all received, it says 668.241 and in 

parentheses, it says five through seven A five to seven. 

But we, because we removed recidivism from the “must 

assess” to the “may assess” the numbers kind of got out 

of sync. So we just updated the numbers. So it's so 

it'll be 668.4 241 A1 four through six for reviewing and 

approving the method for credits to improve the 

methodology. And I'll just take you down to 241, just so 

you can see that we were talking about. So the 
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accreditor is going to be we're proposing to the 

accreditor review and approve the methodology behind the 

experience, credentials, rates of turnover for 

instructors, transferability of credit to at least one 

institution in the state of the state that most are 

likely to return and also the Prison Education Programs 

offers relevant academic and career services. So that 

was just the one technical, purely technical edit. And.

MR. ROBERTS: Much appreciated. So 

before we solicit and invite any final comments or 

questions on this, David, I see your hand. Anything else 

for OGC or as it relates to the technical edit? Okay. 

David, please.

DR. TANDBERG: Realizing that the 

twenty five percent, no more than twenty five percent is 

a statutory requirement, but previously appeared, at 

least from what I've heard, that the public, nonprofit 

institution wanted to go above twenty five percent or 

happen to be above twenty five percent because of 

enrollment shifts. The waivers were granted nearly 

automatically, therefore relieving some of the 

administrative burden on the education providers. But it 

sounded like from yesterday's presentation that those 

waivers are being proposed to not be automatic anymore 

and that there'll be a more robust process. I think I 
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share a lot of Heather's concerns about the amount of 

administrative burden that we're putting on these 

institutions and their ability to even provide these 

services if we continue to overload them. So many of 

these institutions are low resourced, understaffed on 

the administrative side, preferring to focus their 

resources on the educational side. I wonder, I don't, I 

don't understand the 25 percent threshold to begin with. 

I think that's likely why it used to be an automatic 

process because 25 percent was likely pretty arbitrary 

with no evidence would be my guess. I would propose we 

continue the process as it existed and not adding any 

more administrative burden to these institutions around 

an arbitrary threshold. So that's my proposal. I welcome 

comments from the Department or the subcommittee.

MR. ROBERTS: Aaron, Stan, or Belinda, 

any any response for David immediately?

MR. WASHINGTON: I'll letMR. ROBERTS: Or Aaron and Belinda.

MR. WASHINGTON: No, I'll let Belinda 

go, this was her, this is a subcommittee recommendation.

MS. WHEELER: Yes. Thank you very 

much. Thank you for your for your comments, David. I 

definitely understand how the system has worked with the 

experiments for the first round and the second round, 
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looking holistically with the subcommittee experts that 

were obviously through different areas, but then also 

the work that Vera has done in supporting these these 

sites during the experiment there, the the the level of 

quality that we've seen has been all over the place with 

with expansion, and some of it has been the highest 

quality that you could imagine. And, you know, as 

technical assistance that we have provided support, it's 

been really seamless. However, there's other situations 

where it seems that quantity has been emphasized more 

than quality, which is the reason why, you know, 

speaking with my constituents, I brought it to the table 

for the subcommittee this idea of scaffolding up to 

ensure that quality is maintained as an institution goes 

to that quantity part. So I I definitely I hear you. I 

definitely hear your concerns. Just know from a 

positionality of someone who used to be a Prison 

Education Program director at a small, understaffed, 

underserved financially HBCU, I understand firsthand a 

lot of those challenges with administrative things and 

things of that nature. Also, with the Vera hat, I also 

understand, you know, just this positionality in this 

space, and that's why I brought it to the subcommittee 

that we really need to focus on making sure that, you 

know, I definitely want education. And the subcommittee 
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as well wants educational opportunities available to as 

many people as possible who are incarcerated. With a 

traditional student if they don't like a quality of a 

program, they can literally withdraw from an institution 

and literally walk across the street to another campus 

and start a different program. Our students who are 

currently incarcerated do not have that luxury. And I 

think it's really paramount on us to ensure that quality 

takes precedence instead of quantity. And then, of 

course, there are those scaffolds that allow that 

institution to go up to that 75 percent. So, you know, I 

think we agree to respectfully disagree with each other. 

I appreciate you allowing me the opportunity to kind of 

put my insight as to why I brought that to the 

subcommittee and why the subcommittee did support very 

much.

MR. ROBERTS: David, any response for 

Belinda otherwise, I'll move on to Heather. Okay, great. 

Heather, please go ahead.

DR. PERFETTI: I would just add that I 

would share David's concerns about the process and the 

timeliness of that process, as institutions are managing 

student populations and may see some increases to ensure 

that they received the waiver response in a timely 

manner.
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MR. ROBERTS: Thank you. Yeah, 

Michaela.

MS. MARTIN: A little bit off topic 

than what's being discussed here, my apologies, but 

there's a section there in which says that in the 

decision making process that key stakeholders have to be 

engaged and I understand that it's [inaudible]They can't 

be voting members, but I just really like on the record 

wanted to say that I hope that that is taken seriously 

and that folks really are engaged during this decision 

making process and heard and that that isn't just kind 

of ends up being a tokenized position. It's like a 

checkbox from the from the regulations. And I would look 

forward to hearing after how that ends up being 

incorporated as part of the process.

MR. ROBERTS: Stan, please.

DR. ANDRISSE: So thank you and 

pleasure again to be here with you all. I just want to 

make something maybe that's that's obvious kind of clear 

is, you know, this has been passed into law that, you 

know, these Prison Education Programs one way or the 

other in terms of how the regulations go has, will move 

forward. So I mean, I think there's still and I say that 

because, you know, as an advocate in this field, I know 

there are just two sides to, you know, different sides 
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to this issue. And some people just don't believe prison 

education need to needs to be a thing. Period. Prison 

should be a place for punishment. And you know, I just 

want to emphasize that this is going into law. I mean, 

we are debating on the regulations. I think I know 

that's probably clear to everyone, but you know, we want 

to here, try to make it go in as effective as possible. 

And, you know, so voting down does not take prison 

education away. It's going and moving forward. And you 

know, I would just reiterate that the subcommittee, 

which was made up of a group of diverse experts, is in 

support of the format that it's in. So, you know, voting 

down may not even do what you hope for it to do.

MR. ROBERTS: Thanks, Stan. I 

appreciate the segue. Anne, I think you're going to be 

the final comments on this, and then we will move to a 

consensus check on the language recommended by the 

subcommittee. Anne, please.

MS. PRECYTHE: Thank you, Brady. And I 

just wanted to to just take a second and say as an 

operational person, I wanted to respond to Michaela's 

comment in the correctional leaders across this country 

take higher education very seriously in our 

institutions. It's a very important process that we 

engage in, and I believe, we believe as correctional 
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leaders in being much more transparent than years past. 

And we rely on lots of additional stakeholders to help 

guide us through the processes. We're not education 

experts, so we need people who are impacted by our 

programs, as well as people who (inaudible) that can 

guide us to be a part of that. We look at education like 

we do health care, like we do food services, like we do 

a lot of other things. It takes a lot of outside people 

to help give us information and resources. So for what 

it's worth, just know that the relevant stakeholders 

would never be considered token, if you will. We rely on 

those kind of people, and I appreciate the additional 

guidance from the Department suggesting who are really 

credible people that we should consider consulting with. 

So thank you for that.

MR. ROBERTS: Thank you, Anne, 

couldn't find my unmute button. So John, I see your 

hand, but I really would love to move us to a consensus 

check. Is itMR. WHITELAW: It's 10 seconds. 

MR. ROBERTS: Go for it.

MR. WHITELAW: I just wanted to 

express our strong support for this, that folks in the 

disability community stand behind the work done by the 

subcommittee and we are strongly in favor of this.
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MR. ROBERTS: Thank you, John. And so 

with that, what I'm going to ask everyone to do is 

really clearly and in front of your screen indicate a 

thumbs up, indicating strong support. The sideways thumb 

indicating you can live with the subcommittee's 

recommended language or a thumbs down, which means you 

have strong reservations against consensus. If that is 

the case, we’ll provide you an opportunity to expand 

more on that. But with that, please, if everyone could 

show me their thumbs and I will announce them as they 

appear on my screen.

MS. MARTIN: For the record, Stanley 

is, Dr. Stanley is taking the vote for independent 

students.

MR. ROBERTS: Understood, thank you, 

Michaela. Alright. Jeri thumbs up, Anne, thumbs up. John 

thumbs up, Joe, thumbs up, Jaye thumbs up. Persis thumbs 

up. Heather thumbs down, Bobby, thumbs up. Noelia thumbs 

up. Carol thumbs up. Stan thumbs up. Justin thumbs up. 

David sideways thumb. Marjorie thumbs up. Dr. McTier 

sideways thumbs. Daniel thumbs down. So we have two 

folks who are not in consensus right now. I would 

welcome if Daniel, if you'd like to come off of mute and 

share your serious reservations, then Heather I'll ask 

the same.
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MR. BARKOWITZ: So first of all, I 

want to express there's a lot to like in what's in front 

of us. And I, you know, I am voting no with some concern 

that I don't want to express a no to the work of the 

subcommittee. I appreciate very much the work of the 

subcommittee and I appreciate much of the work that's 

been done. The additional location piece and some of the 

concerns and I know Heather will share on the 

accrediting side, our concerns for my constituency so I 

can't get beyond them. That doesn't mean that I don't 

expect the Department will issue regulations very close 

to what we have in front of us. I have significant 

concerns that you won't see the participation you want 

or any of us want because of those limitations. So 

that's the reason for my my no vote.

MR. ROBERTS: Understood. Thank you. 

Daniel. Heather, please.

DR. PERFETTI: Yes, so I'm certainly 

also want to express appreciation for the quality of 

what the subcommittee brought forward and I think from 

working with my constituency groups and also hearing 

from some institutions and having some additional 

conversation this morning with the Department and trying 

to offer some alternatives, the Department is seeming 

immovable on some areas that I think can easily help get 
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those with reservations to consensus. And I think that 

those are also areas that the subcommittee expressed 

some concern in some of the regulatory language. So I do 

think that there are some areas that could could be 

adjusted in a way that is beneficial for all 

constituents involved. I think the lack of clarity in 

process and institutional requirements, including the 

annual reporting, has raised concerns and has not been 

addressed and then echoing Daniel's concern that 

institutions will exit this space if the regulatory 

burdens seem too great is also a major concern. So those 

are the primary areas for the rationale behind my thumbs 

down here.

MR. ROBERTS: Understood. Stan I see 

your hand, but I just want to say this is always the 

intent with consensus checks. If there is proposed 

regulatory language that would move you to, at minimum, 

a sideways thumb. It's always recommended and encouraged

you share that language with the committee, with the 

intention that it is there. If there is time at the end 

of the week, we will return to issues where we are not 

in consensus to discuss that further. But with that, 

Stan, please.

DR. ANDRISSE: Alright, so that is 

what my question was going to be. So, so thank you 
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Heather and Daniel for giving your reasonings. And I was 

just wondering, Heather, you mentioned that there was a 

conversation where you provided potential language 

remedies. Could that be shared with the committee?

DR. PERFETTI: It was around topics. 

There was some conversation about whether time should be 

spent on some suggestion suggested revisions, and they 

did not appear to be likely to be considered by the 

Department.

MR. ROBERTS: Mr. Steve Finley, who, 

just as a reminder, is with the Department of Education 

in their OGC Department, so please, Mr. Finley, go 

ahead. I believe you're muted right now, apologies.

MR. FINLEY: I think I put my hand 

down instead of unmuting, but I appreciate that reminder 

as well, it helps to to understand I'm speaking for OGC. 

I think the Department has has addressed the concern 

about the Clery question. You know, as Brian noted 

earlier, it really is the definition of campus where 

that modification should be made to make it clear that 

as long as the site is not under the institution's 

ownership or control, it's not a campus and it's not 

subject to Clery. It does need to be an additional 

location for purposes of the Department's tracking of 

these sites, given that there are separate requirements 
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that attach to these locations. But it seems like if 

there is still residual concern for Clery, that perhaps 

that could be addressed in guidance.

MR. ROBERTS: Daniel, please.

MR. BARKOWITZ: So again, the example 

that I provided to Brian yesterday in caucus, and I'll 

just, I'll state this publicly, for the record, is a 

Florida college who I know was in the pilot program, who 

had a separate building at the prison in which, at the 

Carswell institution, at which they were providing 

instruction and that building was under their control. 

It was done under their ownership. So I, you know, I 

think the question is how. And again, it's maybe too 

much for the two days or day and a half we have left, 

but how we define control is a really important one. So 

it's not that they do not own the building, they do not 

own the space but they are ceded the space and it is 

within their control. So that is that is the real 

concern I have. And Steve, I appreciate the Department's 

movement, and I would love to see that in in in 

guidance. And you know, and that is one of two issues. 

The more minor one is the second approval, but I could 

live with that. It's really the the first that is my 

stumbling block.

MR. ROBERTS: Thank you, Daniel. 
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Heather.

DR. PERFETTI: So wanted to add to the 

comments earlier and as a follow up to Stan as well, I 

think that some of the areas that we were talking with 

the Department about earlier today related to the shifts 

in the language that still held true to the statute 

because we understand that much of this is governed by 

statute. But perhaps removing what is not governed by 

statute into a different category that was not a 

requirement, but was optional in terms of the assessment 

and evaluation relating to that best interest of the 

student section. There are certainly pieces of that that 

are reflected in the statute, but there were some 

additions into that section that go beyond the statute. 

And those becoming a list of options for evaluation 

versus mandated requirements for evaluation seems a 

better approach.

MR. ROBERTS: Michaela.

MS. MARTIN: It's because I know we're 

about to move on. I just wanted to give like a huge, 

huge thank you to Dr. Andrisse and Dr. McTier, both of 

which are both on the regular committee and on the 

subcommittee, which means they're putting in like double 

hours and a lot of effort for for all of this. And I 

think that you all did really great work and to 
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everybody on the subcommittee, but especially those 

folks that are on both committees that so much I can't I 

can't even so thank you.

MR. ROBERTS: Thank you, Michaela, and 

yes, thank you very much for the work of the 

subcommittee. Any final thoughts from the Department on 

this issue?

MR. WASHINGTON: Yeah, what I wanted 

to okay Brady, can I speak?

MR. ROBERTS: Of course, yes.

MR. WASHINGTON: Okay, I wanted to 

share my screen again and ask. I wanted to share. You

all can see that. Here is the proposed language that the 

Department could offer to get to hopefully allay some of 

Daniel's concerns with campus security reporting. So 

I'll try to make my screen smaller. We'll find the 

appropriate place to put this in the regulations. But it 

would say a campus does not include a federal, state, or 

local penitentiary prison jail reformatory, work farm, 

juvenile justice facility, or other similar correctional 

facility. No part of which is owned or controlled by an 

institution. So this is not this is not the I'm sorry, 

Brady, I just want to clarify this is not the specific 

regulatory citation where the language would go. It's 

just we can find the best place in the regulations for 
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Negotiated Rulemaking - 12/09/21

it to go to clarify.

MR. ROBERTS: Any feedback for the 

Department on this new proposed regulatory text?

MR. BARKOWITZ: I appreciate it. I 

still think I'm stuck with the question of control, so 

you know, and we're are the only holdout I may actually 

move to sideways here, but there are other issues I know 

Heather has. We have concerns about reporting as well. 

There's there for me, secondary concerns for their 

concerns. But but I appreciate Aaron this attempt. It 

still doesn't address. I need to know what happens if 

I'm in control of the space at a carceral facility and 

what that means so campus. I do appreciate the carve out 

and I appreciate where the Department is trying to go 

and I would support this language, but it doesn't move 

far enough for me to change the vote.

MR. ROBERTS: Any additional feedback 

for the Department?

MR. WASHINGTON: Oh, no, I have 

nothing further.

MR. ROBERTS: Anything for the 

Department. Stan, please.

DR. ANDRISSE: So I I still am a 

little unclear on on Heather's reservation in terms of 

is it is it that we should more clearly note which was 
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Negotiated Rulemaking - 12/09/21

statutory and which was regulatory in terms of the best 

interest section? I mean, so I mean, I know I know we we 

want to move forward from this and I don't want to hold 

this up. But I'm just wondering is if there is language 

that you could provide to the committee to where we can 

maybe help you know wordsmith it and maybe move to a 

place of comfortability?

DR. PERFETTI: Yes Stan, so I offered 

the suggestion, and this is just one issue that I have, 

but I'm happy to explain it. I on page, I think it's 10. 

There are assessment criteria that are listed. Some of 

those are by statute and some of those are not. I asked

the Department this morning if they would consider 

moving those that are not required by statute under the 

provision that speaks to recidivism, which is a “may”

versus a “shall”. And there I don't. I don't want to 

speak for them. But but there did not appear to be the 

willingness to do that. So it's not a matter that I had 

to craft language. It was asking for those that are not 

mandated by statute to be more reflective of a laundry 

list of other criteria that the correctional facility 

and officials can consider, and also that institutions 

and other stakeholders can consider in assessing whether 

the program is operating in the best interest of

students. And I believe that Terrence, who was with us 
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Negotiated Rulemaking - 12/09/21

this morning, also indicated that there were 

conversations at the subcommittee level around the the 

possibility of other criteria that may be beneficial to 

consider, but those weren't included. So it's really a 

matter of all of the following have to be considered 

moving some of those that aren't required by the statute 

in a more optional kind of reflected space in the 

regulation.

MR. ROBERTS: Aaron, your response?

MR. WASHINGTON: I so the regulation 

specifically states that all of the following must be 

assessed and the and the reason the Department came back 

to the table with the language in small (b), which says 

the oversight entity makes the best determination 

through the feedback process with input from relevant 

stakeholders and in light of the totality of 

circumstances, was specifically to address that concern. 

We wanted to clarify that not meeting one of the 

requirements is not disqualifying, but it's an 

assessment of the totality of circumstances. The 

Department believes that it is in the best interest of 

students to assess all of the indicators under the 

“must” column. That assessment will help the Bureau of 

Prisons, the institutions, the accreditors, all 

stakeholders involved in the holistic process, determine 
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Negotiated Rulemaking - 12/09/21

whether these programs are in the best interest of 

students. Not meeting one indicator does not mean that 

the program cannot continue to participate. It is an 

assessment of the totality of, its assessment of each of 

the indicators and reveal the totality of circumstances. 

Based on that assessment, so. Wanting to being wanting 

to ensure that we're taking many, you know, a holistic 

totality of the program into account, the Department 

believes that all of those indicators are necessary to 

at least be assessed to get a the best picture of the 

best to ensure the program is in the best interest of 

students. So I'll stop there.

MR. ROBERTS: Thank you, Aaron. So not 

not seeing any more hands. Just to currently recap where 

we are not in consensus on the recommended language of 

the subcommittee right now. But of course, if there is 

time to return to this issue and who are holdouts like 

to suggest preambulatory language or regulatory text 

that would move them to a minimum sideways thumb, 

meaning they can live with the recommended language. We 

would always encourage that. But with thatMR. WASHINGTON: Brady, I'm sorry. 

Brady, one more question. Can I, I just want to clarify,

Heather are you are you saying if we move, if are you 

saying if the Department were to move complete the 
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completion indicator to the “may assess” that would that 

would that be sufficient?

DR. PERFETTI: No, I think I indicated 

that that's one issue of several others, and I'm 

certainly happy to send those forward. We had talked 

about them this morning, but I'm happy to send them in 

writing forward. And if we can circle back to this with 

some language with Stan and Belinda's input and other 

members of the committee, I'm hoping that we can we can 

do that and address some of this.

MR. ROBERTS: That's appreciated. So 

before we go to PSLF, I just want to give us a quick 10 

minute break just so we can we can prepare for the PSLF 

discussion and we'll return promptly, let's say a 10:55, 

so a 12 minute break. We will see everyone then. Welcome 

back, everyone, I hope you enjoyed your break, thank you 

again to the committee and the subcommittee for all 

their work and discussion on these issues. And again, I 

do want to reiterate the intention always is an issue we 

are not in consensus on, we will have time to reexamine 

things. So the Department is always happy to entertain 

and look over new proposed text. And so with that, I 

want to move us pretty quickly on to issue papers four 

and five on PSLF and Jennifer, it's my understanding you 

just want to walk through that a little bit.
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Negotiated Rulemaking - 12/09/21

MS. HONG: Just before we take the 

vote, again, thank you to the subcommittee on PEP. I 

know that they worked really hard to get us where we're 

at right now. And also before we take this vote on PSLF, 

I just wanted to. I did want to circle back to 

acknowledge Michaela's comment Tuesday afternoon during 

the public comment period regarding the very compelling 

personal testimony we've been hearing about individuals 

experiences struggling with student loan debt or the 

aftermath of coping with what amounted to a worthless 

degree. I think all of us have been affected by this 

testimony, and it's and it's disheartening to hear. I 

know you are affected Michaela, and I think it's 

important to acknowledge that. But it is Thursday of the 

third session in this unique process of negotiated 

rulemaking. Just want to bring us back here. I think the 

fact that we're here, we're having these conversations 

and making real and significant changes to improve these 

programs is a major undertaking and commitment on our 

part. Throughout the past few months, we've advanced the 

language before you based on the discussions from this 

table and the public testimony. And these changes have 

been substantial. In other words, we're not we've not 

only made suggested changes throughout these 

discussions, but we've demonstrated our commitment every 
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Negotiated Rulemaking - 12/09/21

step of the way, including the prep work and outreach 

that went into this rulemaking. Even outside this 

rulemaking, the waivers we provided under the COVID 

emergency have already provided real relief to students 

and families. Most notably, the PSLF waiver, which as we 

speak, is providing cancelations for public service 

employees across the nation and specifically on PSLF 

just to review again, we've pored through both written 

and oral public comments to make the changes that we've 

proposed. As a result, we've expanded the definition of 

full time to be more encompassing and to ensure we 

include contracted employees and a broad definition for 

non tenure track employment. We even inserted the 

conversion factor and contact hours for faculty, as 

suggested by this committee. So thank you for that. 

We've clarified the definition of military service to 

ensure that organizations that serve our military and 

veterans qualify for PSLF. We've added several other 

definitions under the regulations to ensure we capture 

service provided by school-based services, public health 

professionals, public service for individuals with 

disabilities and the elderly. We've clarified our 

definition of employer providing a process of 

attestation on a form approved by the Secretary. 

Notably, we've greatly expanded what can be considered a 
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Negotiated Rulemaking - 12/09/21

monthly payment, including flexibilities for multiple 

installments, conformance with our repayment plans and 

including time and deferments and forbearances as 

monthly payments. You may recall one of our public 

commenters at our last session talked about her 

struggles with the overlap of her payment and transition 

from one employer to another. We responded. We clarified 

the language to provide that the individual qualified by 

employment at any point during the month for which that 

payment is credited. We've included language to ensure 

that payments on Direct loans prior to consolidation 

count toward PSLF without the clock restarting. We 

provided for an automated process for data we may 

receive on federal employees and military service or any 

other entities in the future that we may receive on a 

data match. We've included a reconsideration process for 

borrowers that have been denied. Notably, we've also 

included Hold Harmless procedures for borrowers that 

have been steered into forbearances during their months 

of employment with a qualifying employer. We will 

include those periods of forbearance or credit for 

forgiveness. And we've included language for FFEL 

lenders to provide more detailed reporting to the 

Secretary on the program. So I mean, these changes are 

not insignificant. We we believe that these proposed 
35

Negotiated Rulemaking - 12/09/21

changes could make real differences in the lives of 

public service employees seeking forgiveness under the 

program. We appreciate all the feedback to get us to 

where we are today, and we look forward to reaching 

consensus on this issue.

MR. ROBERTS: Thank you, Jennifer. 

Before I invite final comments on this subject, I just 

want to just briefly go over how we're going to take the 

consensus check, it's going to go issue four, which is 

improving PSLF application, the application process and 

then issue five, which is related to definition so we 

can walk through that one more time. But at this point, 

I welcome final comments on this. Joe, please go ahead.

MR. SANDERS: Hi, thanks Brady and 

thanks Jennifer, for the recap on the Department's 

efforts here. At this point, I would like to call a 

caucus of all non-federal negotiators to go through 

issues four and five. And in particular, I want to make 

sure that we have our experts in the room, and Heather 

specifically.

MR. ROBERTS: Alright, let's pause the 

live stream and we can sort out the technology. Oh, 

wait, Jennifer before we do that, please.

MS. HONG: I just I just want to bring 

to your attention that we have a very significant 
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Negotiated Rulemaking - 12/09/21

Borrower Defense proposed language rule that we have, we 

still haven't gotten to where we're a little behind. And 

I just I if you're going to take if you want to take a 

caucus, please do. But if we could just be mindful of 

the time here, really appreciate it.

MR. ROBERTS: And so with that, if you 

just want to pause the live stream, you can get 

everyone. Welcome back, everyone, and I hope you enjoyed 

that break period while the committee was in caucus. 

Thank you to the committee for being expeditious in that 

caucus period, so I would now like to invite any final 

comments for the Department in the committee's 

consideration before we move to a consensus check on 

issue papers four and five as they relate to Public 

Service Loan Forgiveness. Marjorie, please.

DR. DORIME-WILLIAMS: Yeah, thank you, 

I just have a really quick clarifying question with 

respect to the Hold Harmless procedures. There's a 

subsection that has a strike out where it says, 

excluding periods of in-school deferment. So are we to 

understand that to mean that if a borrower had deferment 

while in school, those deferments would count towards 

their 120 months or payments? Is that am I reading that 

correctly? Sorry, and it's on page nine.

MR. ROBERTS: Do you want a second 
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Negotiated Rulemaking - 12/09/21

Jennifer?

MS. HONG: Yeah, can you go on to 

Daniel?

MR. ROBERTS: Sure. We'll get back to 

that one. Yeah. Daniel, please.

MR. BARKOWITZ: Maybe I'm trying to 

answer Marjorie, so maybe Jennifer this will help. What 

I read in that is that you can't qualify for months when 

you're in school based on that because it's not, inschool deferment is not a deferment that counts under 

earlier in the section. So the restriction is if you 

choose to pay while for in-school deferment, even if 

you're working full time, there's no way that could be 

counted. That's that sort of what I understood it to be. 

The Department may have a different read on it, but 

again, in-school deferments, not a deferment choice that 

counts as a payment period. But maybe I'm 

misinterpreting.

DR. DORIME-WILLIAMS: Okay. And sorry, 

go ahead, Jennifer.

MS. HONG: I don't even know how that 

got in there. That strikethrough. I mean, I think that 

was probably just internally. We don't need to make that 

explicit.

DR. DORIME-WILLIAMS: Okay. And so 
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Negotiated Rulemaking - 12/09/21

then with those count for this, for what comes after for 

making additional payments later on or is it just we're 

not talking about in-. 

MS. HONG: Yeah, we're not talking 

about in-school deferments.

DR. DORIME-WILLIAMS: Okay, thank you.

MR. ROBERTS: Persis, please.

MS. YU: So my comments are about both 

the both four and five altogether, and I think, you 

know, first of all, one of the things that's important 

to recognize and we've raised this over and over again 

is the link between Income Driven Repayment and Public 

Service Loan Forgiveness. The reason why it's so 

important to get people captured into Public Service 

Loan Forgiveness is because Income Driven Repayment has 

absolutely failed to get borrowers out of their debt. 

Right now, the best case scenario you get cancelation 

twice as long and it has and and frankly, close to no 

one has ever actually achieved that, right? And so it's 

so important, especially for our most low income public 

service workers to be able to get folks into affordable 

payments that provide a reasonable pathway out of debt. 

And we haven't done that for Income Driven Repayment, 

and we're not doing that for Public Service Loan 

Forgiveness. You know, we know that low income workers 
39

Negotiated Rulemaking - 12/09/21

are not looking at the tax status of their employer when 

they choose their job. So maintaining this distinction 

between for profit and nonprofit is both contrary to the 

statute and harms the most low income workers. We know 

that low income folks and all folks really, we've heard 

this over and over again have been steered into 

forbearances, and that's what we're not counting. The 

problems that we have seen for the lowest income and 

most vulnerable borrowers have not been addressed in 

either Income Driven Repayment or in Public Service Loan 

Forgiveness. And so that will be the basis for my vote.

MR. ROBERTS: Thank you, Persis. Not 

seeing any other hands Jennifer, would you mind walking 

the committee? What is actually subject to the issue 

number four consensus check? Oh Brian, I see your hand. 

Go ahead.

MR. SIEGEL: Yeah, just want to remind 

committee members that once we have a consensus check or 

consensus vote, if the Department, if the committee 

reaches consensus, we are bound to publish the the reg 

language approved by the committee on which we reached 

consensus as proposed rule that that will be. There's a 

small exception for if we change language, we have to 

explain why. But we've never done that. We've never 

changed language that that a committee has approved, and 
40

Negotiated Rulemaking - 12/09/21

it's been very helpful when we've been asked by other 

offices or other parts of the government to change 

language, to say we can't because it was approved by the 

committee. So if we get consensus, we publish the 

language as approved. If we don't reach a consensus, 

we're not bound by anything that was included that we 

included in the proposed language during these 

negotiations. So if there are changes that we made to 

accommodate concerns, they may or may not show up in the 

proposed rule. I don't know. I can't say they will, I 

can't say they won't. But there could be significant 

changes from what you see here in the proposed rule if 

there isn't consensus. So just wanted to make sure that 

you all know and most many of you are experienced 

negotiators, you've been through this before. But just 

wanted to make sure that was clear to everybody before 

the consensus votes are taken.

MR. ROBERTS: Thanks, Brian. Jennifer 

if you want to cue up issue number four for us.

MS. HONG: Great, Aaron, did you want 

to queue up the language, did you want me to project the 

language and just point to it? That'd be better? Yes. So 

issue number four is everything on page four, starting 

from page four, qualifying repayment plan till the end 

of the regulation deals with the application process. 
41

Negotiated Rulemaking - 12/09/21

Yeah, right there, starting from qualifying repayment 

plan to the end of the rule is issue number four.

MR. SANDERS: So they're transposed. 

Four is on the bottom, five is on the top.

MS. HONG: Yes, all the definitions 

are for issue five are at the beginning.

MR. ROBERTS: Alright. If you wouldn't 

mind unsharing, Aaron, just so I can see everyone's 

profiles very clearly. Alright. So I'm now going to ask 

to see thumbs on the consensus check for issue paper 

number four on PSLF. I'll read them off. Waiting just to 

see a few more. Justin (inaudible) Justin sideways 

thumb, Marjorie sideways thumb, Bobby sideways thumb, 

Heather sideways thumb Daniel sideways thumb Joe thumbs 

down. Jaye thumbs down. Noelia thumbs up. I'm sorry. 

Jaye Jaye sideways, my apologies. Yeah. John thumbs 

down. David sideways thumb. Jeri sideways thumb. Carol 

sideways thumb. Persis thumbs down. Misty sideways 

thumb. Michaela thumbs down. Jennifer thumbs up. At this 

stage, let's move directly into issue number five and 

then we can solicit additional guidance for the 

Department. So Aaron, if you want to reshare that 

document.

MS. HONG: And issue number five is 

everything from the beginning to where issue four begins 
42

Negotiated Rulemaking - 12/09/21

on page four. To qualify repayment plans, just basically 

all the definitions, including eligibility, full time 

employment. I see Raj has his hand up.

MR. ROBERTS: Oh do you, Raj? I'm 

sorry if you want to turn on your video, please.. 

DR. DAROLIA: That was a mistake. That 

wasn't.

MR. ROBERTS: Alright. Thank you, 

Aaron. Now, again, to take an official consensus check 

on issue number five as it relates to PSLF, please, I 

would love to see your thumbs. Right, Justin sideways 

thumb, Marjorie thumbs down. Bobby, I think that's a 

sideways thumb, Heather sideways thumb, Daniel thumbs 

down, Joe sideways thumb, Jaye sideways thumb, Noelia 

sideways thumb. John thumbs down. Persis thumbs down. 

Carol sideways thumb. Jeri sideways thumb. David 

sideways thumb. Misty sideways thumb. Michaela thumbs 

down. Jennifer thumbs up. So we are not in consensus on 

issues four and five for PSLF. Any new guidance or 

suggestions for the Department before we move to IDR?

Michaela.

MS. MARTIN: Just I just wanted to 

reiterate that I just really didn't think that it went 

far enough that when we're going to try and capture 

public service, we cannot limit it to 501(c)(3). And 
43

Negotiated Rulemaking - 12/09/21

like any kind of corporate designation.

MR. ROBERTS: Thank you, Michaela, 

Joe.

MR. SANDERS: Yeah, I'll be brief 

because I think the Department knows where I am on this, 

but I don't think that we have done enough here to 

reduce the sky high denial rates. I think we need to 

think bigger. It's about time and public service, and 

that has to be the focus in order to get people to 

qualify. I'm concerned that payment counting is going to 

continue to be an issue once the waiver is done, and I'm 

concerned that FFEL loans are going to be continue to be 

a problem once the waiver is done. One idea that I 

haven't put forward that I'll mention here now is 

although I know the Department does not want to bind 

itself, if there could be some sort of acknowledgment of 

what the Department is going to do with the data that 

they're collecting, I think that that would be a big 

step forward in terms of taking some kind of step to 

help FFEL borrowers once the waiver is done. 

Potentially, this could look something like if there's a 

data match and the Department recognizes that someone 

both works in public service and has a FFEL loan, that 

the Department will send them some kind of a 

notification saying you are in the wrong loan type for
44

Negotiated Rulemaking - 12/09/21

Public Service Loan Forgiveness.

MR. ROBERTS: Thanks, Joe. John.

MR. WHITELAW: Yeah, I want to comment 

on Brian's remarks before the vote, and I'm sure it was 

not intended this way, but it sure sounded like a veiled 

threat, and I think that's not helpful. I'm just going 

to say that telling us if you vote no, we we we will we 

can do what we like and that means we might do less. 

It's just not. We know this. There's no there's no other 

point I I took that as a an attempt to. I'm not sure 

that it was intended that way, but to sort of coerce us 

into voting for consensus, and I just think it's not 

helpful. That's not that. That is not going to make me 

vote yes when I'm going to vote no. And I just, you 

know, it felt coercive even if that was not the intent. 

And I apologize for going out on a limb and saying that. 

But that was how I felt when it was said.

MR. ROBERTS: Brian, I'm seeing your 

hand up.

MR. SIEGEL: Yeah, I just want to say 

that was not the intent, and I'm sorry if it was taken 

that way and I tried to to, my goal there was just in 

the past we have had questions as to whether we're bound 

by what's on the table when we take a vote. And I just 

wanted to make sure that the committee knew that we're 
45

Negotiated Rulemaking - 12/09/21

not. I understand that many of you are experienced 

negotiators. There are some who aren't. So that was my 

intent. I apologize if if I said it in such a way that 

it was perceived as a threat, that's not what I 

intended, so I apologize.

MR. ROBERTS: Alright, and thank you 

to the committee for their deliberation on this. I'd now 

like to move us to IDR, and it's my understanding the 

Department would like to respond to the committee's 

suggestions from earlier this week.

MS. HONG: Thank you, Brady. So 

turning to IDR, just as a summary where we are with 

that, we've again in our attempts to conform PSLF and 

IDR, we've included again the deferments and 

forbearances toward monthly payments for IDR and 

including the Hold Harmless process as well for 

borrowers that have been wrongfully steered into 

forbearances. So those months of forbearance steering 

will count as monthly payments. We've included defaulted 

borrowers into IDR and that zero dollar payments can 

count toward forgiveness. We've included that the clock 

will not reset for payments after borrower consolidates. 

They will be able to count those payments prior to 

consolidation. And also, we've included an auto 

enrollment into IDR, but a critical feature of the plan 
46

Negotiated Rulemaking - 12/09/21

that we propose is lowering monthly payments for 

borrowers. We believe the marginal assessment will 

target benefits for those who have the lowest incomes 

while providing benefits to those who earn more. So, I 

mean, I realize that these changes may not be as 

comprehensive as many of you would have liked, but we 

will take your suggestions going forward. We feel like

these changes will be important to borrowers going 

forward as well. That being said, many of the red lines 

that you suggested were captured in previous proposals 

that we ultimately did not include in the proposed text, 

but we did consider them, and we appreciate the 

thoughtfulness that went into some of those proposals. 

One thing we did change and it was an oversight in the 

proposed language was that we had meant to include under 

section H on page six for interest subsidy language. We 

want to make sure that that that language now includes 

subsidy on unsubsidized undergraduate Direct loans in 

addition to subsidized Direct loans. And that was a 

comment that you did put in in the red line. But we had 

intended to provide that for them from the outset. We 

also made a change that Daniel pointed out to include 

Americorps forbearance on page eight. So we're putting 

forward our proposed text with those two changes forward 

without the red lines for consensus check.
47

Negotiated Rulemaking - 12/09/21

MR. ROBERTS: Okay, I'll open it up to 

the committee for final comments for the Department. 

Persis.

MS. YU: Well before we get to final 

comments because I have many final comments, but I have 

a clarifying question for Jennifer on on the change to 

the interest subsidy. I appreciate that we're now 

counting subsidized loans, but want to clarify that it 

is still just for zero dollar payments and not for 

anyone with any any sort of payments. Is that correct?

MS. HONG: That's correct, and we can 

look at the language right now just so you can have a 

peek. Aaron, if you can cue the IDR language on page, 

page four. I'm sorry, page six, paragraph H under 

interest subsidies. Under four, H four. During all 

periods with amount equal to the amount of accrued 

interest of the borrower's undergraduate, Direct 

Subsidized and Direct Unsubsidized loans and undergrad. 

And undergraduate, Direct Subsidized and Direct 

Unsubsidized consolidation loans.

MS. YU: Thank you for that 

clarification. 

MR. ROBERTS: Thank you, Persis. 

Anyone else, any any questions or comments? Yeah, 

Michaela.
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Negotiated Rulemaking - 12/09/21

MS. MARTIN: So we're not even 

considering changing the name like none of the 

suggestions that we've put forward, not even just the 

name, but like in general, like there's been no 

substantial or even just surface changes or 

conversations. And so like, I understand we're going to 

consensus and I just usually you'll ask after, but that 

like I have to vote no, like, I appreciate that we're 

trying to lower payments. But I cannot support policy 

that just gives people a lifetime of debt like that is 

so overwhelming for me to have to consider, not to 

mention that if I vote yes and say, okay, we lower 

payments because like, that's something right, that then 

it silences me and my ability to further advocate and 

say that I don't support the rest of the policy.

MR. ROBERTS: Jennifer, see your hand.

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

think there were a lot of great ideas. We just couldn't 

we couldn't make those changes in this moment, and we'll 

we'll certainly take a look at the suggestions further 

or contemplate them further. And we understand that this 

is not where the negotiators wanted the Department to 

land. But we'll continue to consider there your feedback 

as this process continues into the NPRM, including the 

name change suggestions.
49

Negotiated Rulemaking - 12/09/21

MR. ROBERTS: Thanks, Jennifer. Jaye.

MS. O'CONNELL: Thanks, so I have a 

few remaining questions that I'd like to outline. More 

from, I guess maybe it's a little more practical. I just 

want to say, you know, dating back to 2009, we've been 

tracking and counting qualifying payments on FFEL loans 

toward forgiveness. So we get that we support it, but we 

don't fully understand the statutory authority that 

Brian referenced under 493 C B 7 how it's expected to 

work practically as we account for our loans and 

qualifying payments on the underlying FFEL loans. So. So 

the first thing is under the the 685.209 K 4 5, this is 

the provision where we count the underlying FFEL. Do we 

continue to count our payments as we do in FFEL regs? 

And that would be section 682.215 F. And if that's so, 

I'd like to add the F to that reference in the 

regulation. That's my first question. The second one is 

I'd like to illustrate with an example sort of how The 

Department views FFEL borrowers with mixed let's go with 

the undergrad and grad loans. Oh, how borrowers with 

mixed repayment timelines like how is that supposed to 

work? So. And I think this also speaks to giving the the 

plan to undergrads and not grads. So if you have an 

undergrad loan that has 10 years of repayment 

forgiveness credit and then they've subsequently taken 
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Negotiated Rulemaking - 12/09/21

out graduate loans that have only five years of 

qualifying payment credit. When you combine those loans 

through consolidation into DL, how much does that new 

consolidation loan get? We've, on FFEL we have counters 

on loan 

MR. ROBERTS: Thirty seconds.

MS. O’CONNELL: okay, so I guess those 

are those are the two questions, and I'll get back in 

line.

MR. ROBERTS: Any immediate response 

from the Department? Otherwise we can we can come back 

to those. Not seeing anything, Jaye. We'll come back to 

those, but but Marjorie, please.

DR. DORIME-WILLIAMS: Thank you again, 

I think for all of the work that the Department has 

tried to do on this, I just need to come back again to 

this issue of graduate borrowers. It's really 

problematic for a number of reasons. One, some graduate 

borrowers are also undergraduate borrowers, so we're 

actually adding complexity and increasing the likelihood 

for confusion in making these distinctions between when 

you got your education and for what. I think again, we 

need to treat borrowers fairly. Some graduate borrowers 

have no undergraduate degrees undergraduate loans for a 

myriad of reasons. And so these individuals are now 
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Negotiated Rulemaking - 12/09/21

being penalized and punished in a way that doesn't make 

sense. And I think the Department hasn't actually 

answered why we're creating these distinctions between 

borrowers. And then finally, where we started again, 

this doesn't address issues of equity in education or 

educational outcomes. There's been numerous evidence and 

research presented that speaks to why many borrowers 

have to get additional education and additional degrees 

beyond the fact that they're simply professions you 

cannot enter without those additional degrees, which 

connects to PSLF, as Persis pointed out. And I think 

we're further disadvantaging students who are already 

marginalized, including students of color, women, and 

the same low income students that we say we're trying to 

help. So I just want to go on the record saying that 

again, making it really clear that that language is 

problematic and doesn't do I think what the Department 

said that the aim was, was to make this simpler, to make 

this a plan that all borrowers are going to go into. And 

so I just I have to go on the record and say that again.

MR. ROBERTS: Thank you, Marjorie. 

Persis, please.

MS. YU: Thank you. I want to just 

start with this idea that Michaela started with and our 

disappointment in the Department's reluctance to accept 
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Negotiated Rulemaking - 12/09/21

really meaningfully any of the suggestions that we have 

made. it is very hard to accept that the Department's 

assertion that it is negotiating in good faith here. You 

know, we we have given you substantial feedback and 

received basically nothing, you know? Where is the data 

that we requested on numerous pieces about who is in 

these plans, how you know, how are their payments being 

applied? What are the constraints that the Department 

and that this administration is under when it's making 

these determinations that it just can't do this right 

now? What is the basis for that? We we don't, you know, 

we have not been given the information through this 

negotiation to really make meaningful choices to 

provide, you know, feedback. This is the first time 

we've seen language and it was, you know, take it or 

leave it. This does not seem like it was truly a 

negotiation in good faith. And I think that that is very 

disappointing and it kind of belies the purpose of this 

entire process that if you were to give us the, what are 

your constraints, we could tell you what is the higher 

priority, but it has been take it or leave it this 

entire time. We haven't even gotten the data I requested 

for an update of the 32 borrowers number. How many 

borrowers have ever received cancelation under Income 

Driven Repayment? We don't yet know that number. We know 
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Negotiated Rulemaking - 12/09/21

it from about a year ago, it was 32. It's abysmal. We've 

seen with the Public Service Loan Forgiveness, the the 

Department and the administration has taken strides to 

right a lot of the wrongs through the PSLF waiver. There 

are a number of folks who were left out of that waiver. 

And the PSLF regs have attempted to remedy some of that, 

although much of it is still lacking. But we have not 

seen the same kind of attention on Income Driven 

Repayment on low income borrowers who Income Driven 

Repayment has not been serving. So what are the 

constraints that the Department has been working under 

that has made all of our recommendations that we have 

been providing. We have provided pages upon pages of 

recommendations and aside from just hearing that the 

Department and the administration is not prepared to do 

this right now. We have not been given the feedback that 

we've needed to provide you with meaningful 

recommendations moving forward. I will reserve the rest 

of my comments till after Justin goes.

MR. ROBERTS: Thank you, Persis. 

Justin, please.

MR. HAUSCHILD: Yeah, thanks so much. 

I just really wanted to convey our extreme 

disappointment in this proposal, I think it's worth 

noting and the Department appears to have done so what 
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Negotiated Rulemaking - 12/09/21

really seems to be overwhelming opposition to this IDR 

proposal, and while I voted in favor of the PSLF 

language because I think it addresses some of or perhaps 

even the majority of the most substantial obstacles to 

borrower forgiveness under that program for my 

constituency, I think there are very real issues that 

exist within that program still. And I think the 

Department's unwillingness to put forward an agreeable 

solution on IDR has exacerbated many of those remaining 

deficiencies and really colored the conversation around 

that topic and perhaps even the vote we took earlier 

today. So in our view, the Department has seriously 

failed to meet the moment here to build a plan that 

addresses what I think and others I would imagine would 

agree with are the well-documented qualitative and 

quantitative evidence that shows that the current IDR 

plans and I think Persis just said this, that really 

shows the current IDR plans are insufficient and which 

suggests that this plan will probably be unable to 

rectify in terms of insufficiencies. So I just want to 

make our position on this on this issue abundantly 

clear, particularly in connection with the PSLF. So 

thank you.

MR. ROBERTS: Thank you, Justin. 

Persis.
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Negotiated Rulemaking - 12/09/21

MS. YU: Thank you, and what I'd like 

to do is I'd like to go back to the stated questions the 

Department has asked us through the process to go back 

to what we've been told the priorities of this process 

would be. And this is to really reiterate the point that 

Marjorie was making earlier. But in the first issue 

paper, we have solution number six. Data shows that 

underserved populations and communities of color face 

higher rates of student loan struggles than others. What

design factors and changes can be better support, 

equitable access and success in repayment? So we care 

about racial justice here. I care about racial justice. 

I believe that this administration cares about racial 

justice. Yet this proposal is not responsive to the 

reality that faces borrowers of color. Borrowers of 

color are disproportionately going to take on Parent 

Plus Loans and be graduate students. And I wanted to 

just point out like, what a disparity this really is 

like looking at. I want to point us back to the article 

on MarketWatch from last month that discussed the 

experiences of black women with student loan debt versus 

white undergraduate men, right? And the data that shows 

that a white man with an undergraduate degree on average 

earns seven dollars an hour more than a black woman with 

a graduate degree. And so mapping that out, like, let's 
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Negotiated Rulemaking - 12/09/21

look at what that means for what they will pay under 

these plans, right? So a black woman in a family of four 

making $50,000 a year is going to have over, in REPAYE 

have to pay monthly over $100. The white man, with an 

undergraduate degree making $50,000 with a family of 

four, will pay zero. How is that equity? It is not 

equity. It is not fair. It is a failure of a racial 

justice analysis to exclude graduate borrowers and 

Parent Plus borrowers, Parent Plus borrowers right now 

have to do ICR, and unfortunately, I wasn't able to get 

my calculator up faster, but that is an even higher than 

100, you know, $109 a month. So we're really just on the 

dollar amount by income there is a racial disparity here 

and that is unfair and we need to address it. Turning 

next to on the first page of the issue paper, although 

IDR plans reduce monthly payments, borrowers who pay 

less in the rate of accumulating interest see their 

balances grow, sometimes significantly. We've heard a 

number of public comments talk about that. We have 

expressed a lot of serious concern about the impact of 

growing loan balances and what that does for borrowers' 

success longevity wise. You've done something for a zero 

dollar borrowers, and I appreciate that. But it really 

fails to help a lot of low income moderate income 

borrowers, right? And it creates just this financial 
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Negotiated Rulemaking - 12/09/21

cliff and financial cliffs, as we all know, are just bad 

public policy. We need to have. Thank you. I'll return.

MR. ROBERTS: Thank you, Persis. Joe, 

please.

MR. SANDERS: I previously expressed 

most of my concerns here, so I'm not going to belabor 

the point, I'm adding plus ones where I hear of 

supporting other people's comments. I'm just going to 

put a big picture framing out here. I think EICR should 

have been a clear best choice plan for everybody in 

order to alleviate the alphabet soup of IDR plans that 

creates confusion and keep people out of the programs, 

to be honest. So I think that EICR is very far from a 

best choice plan, and it's only going to add to the 

confusion surrounding IDR. I don't think that this is 

the overhaul that IDR needs, and I urge the Department 

to seriously consider the items that we provided in the 

line by line because I think instituting those could get 

this to where it needs to be. Thank you.

MR. ROBERTS: David, please.

DR. TANDBERG: Yeah, thank you. I 

think we're really at a crossroads here. I've paid 

attention to negotiated rule makings for a number of 

years now and participated in a past one. I don't know 

that I've seen a moment where a committee and the 
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Negotiated Rulemaking - 12/09/21

Department are so far apart that the committee is in 

such large agreement regarding a clear direction that 

they think policy and regulatory language should go. And 

I find that somewhat concerning. We have a collection of 

experts here who have offered line by line edits. I 

think Persis has become the unofficial spokesperson of 

of our concerns and I think did a really excellent job 

laying them out. And I I feel like more explanation is 

needed from the Department regarding why they're unable 

to consider the specific points. I don't know what's 

holding them back. And I think the committee deserves a 

bigger explanation, if and in particular, if these 

proposed blind edits aren't going to show up in the 

final publish regs are going to be. You know, we're 

we're speaking for very large constituencies who are all 

have a vested interest in this program, and I think we 

need to just better understand that the gap between the 

committee and the Department.

MR. ROBERTS: Does the Department want 

want time to respond to that?

MS. HONG: I, you know, I will just 

say that, you know, what I'm hearing is that we've made 

substantial improvements to the PSLF program and they're 

still thumbs down on that. This is a negotiation. We've 

been here in good faith and as I mentioned before, we 
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Negotiated Rulemaking - 12/09/21

had priorities with IDR. We face some real legal 

challenges, some some hurdles that we just simply 

couldn't rectify in time for this session. That being 

said, there are some real gains here in terms of I 

realize it's not comprehensive enough for this 

committee, but to completely write off all the 

conforming changes that we made between IDR to PSLF to 

ensure that those changes are similar. That to include 

the deferments in the forbearance to to provide a 

pathway for defaulted borrowers. Those are big wins and 

I understand that didn't go far enough for you all. And 

we are going to continue considering this. We simply 

this was a very ambitious agenda. I think we all have 

the same interests at heart here in terms of borrowers 

and student low income, high needborrowers. I 

understand. I understand all the comments that were made 

here. We'll take them into consideration going forward 

in the NPRM. But I do I disagree with the fact that we, 

you know, to say that we have not done anything is, I 

don't think that's a fair assessment. And you have not,

you've acknowledged that we've done so in PSLF and we 

still gotten thumbs down on that. We've been here in 

good faith from day one. And you know, that's all I can 

really say in terms of IDR plan. But we've we have we 

have from from the time that we've received feedback 
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Negotiated Rulemaking - 12/09/21

from you all, we have incorporated those suggestions, 

not all of them, not all of them into the text, but we 

have taken them very seriously and we'll consider 

consider them going forward as well. So I appreciate the 

feedback.

MR. ROBERTS: So conscious of the time 

I am inclined to, I would like to take a check on this 

and then return to this if there is time understanding 

that folks who are thumbs down will have the time and 

space to explain why they are dissenting to the 

Department into the greater committee and those who are 

watching on the live stream. But but I do see hands up, 

Justin and Persis. Is that check amenable to the

committee understanding that you will be given time for 

for a dissent?

MS. YU: I mean, I guess you listen to 

us now or you listen to us later, so.

MR. ROBERTS: Fair enough. So with 

that in mind, I would ask for a show of thumbs for a 

consensus check on the IDR issue. I will I will announce 

the thumbs as I see them. Okay. Justin thumbs down. 

Marjorie thumbs down. Bobby thumbs down. Heather thumbs 

down. Daniel thumbs down. Joe thumbs down. Jaye thumbs 

down. David thumbs down. Jeri thumbs down. Carol 

sideways thumb. Persis thumbs down. Misty thumbs down. 
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Negotiated Rulemaking - 12/09/21

Noelia sideways thumb. Michaela thumbs down. John thumbs 

down. Jennifer thumbs up. What I would like to suggest 

now knowing that we are not in consensus. Oh, David, I 

see your hand.

DR. TANDBERG: Did you record? Excuse 

me, did you record Misty's vote correctly? I thought it 

was a sideways thumb and I think you said it was down.

MR. ROBERTS: I apologize. Misty was a 

sideways thumb.

MS. SABOUNEH: I was going to throw 

that in the chat. Thanks, David.

MR. ROBERTS: Oh, I apologize. But 

with that in mind, I would like to give people their 

opportunity to step away from the computer and we will 

resume at one with explanations from the holdouts and 

then move on to Borrower Defense. But thank you for your 

work in this morning's session.
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Appendix

Department of Education

Office of Postsecondary Education

Zoom Chat Transcript

Affordability and Student Loans Committee

Session 3, Day 4, Morning, December 9, 2021

DISCLAIMER:

Note: The following is the output of transcribing from a 

recording. Although the transcription is largely accurate; 

in some cases, it is incomplete or inaccurate due to 

inaudible passages or transcription errors. It is posted as 

an aid to understanding the proceedings at the meeting, but 

should not be treated as an authoritative record.

From Will (A) FFEL Agencies to Everyone:

getting coffee brb

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

Dr. Mc Tier will be primary for the morning session

From John S. Whitelaw, A-Disabilty (he/his) to Everyone:

John W will be at the table this morning for Bethany 

L. She sends her regrets and will rejoin us this 

afternoon sometime .

From Heather-PSLF Advisor to Everyone:

https://fsapartners.ed.gov/knowledgecenter/library/dear-colleague-letters/2021-12-

07/guidance-ffel-and-perkins-loan-programparticipants-limited-public-service-loan-forgivenesswaiver

From Michaela Martin to Everyone:
64

Negotiated Rulemaking - 12/09/21

7am is so painful

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

+1 to Michaela haha :)

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

In ONE BREATH!

From Jessica Barry, Proprietary (P) to Everyone:

Carol is subbing in for me this morning.

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

Stepping out so my alternate can speak.

From Will (A) FFEL Agencies to Everyone:

Offering a prison program may not be for every 

education institution.... I am sure they need to look 

at a variety of variables when making the decision to 

participate

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

Everyone:

+1 Will

From Michaela [P] Ind Students to Everyone:

thank you

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

I don’t want to take up time saying this so I’m 

putting it in chat. Notwithstanding the lack of 

consensus, my hope is that the Department utilizes the 

incredible work of the subcommittee and puts forward 

its proposal in the NPRM.

From Will (A) FFEL Agencies to Everyone:

+ 1 Josh
65

Negotiated Rulemaking - 12/09/21

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

+1 Josh

From Suzanne Martindale (A) state regulators to 

Everyone:

+1 josh

From Stan (A) Ind. Students to Everyone:

+1 Josh

From Michaela [P] Ind Students to Everyone:

+1 Josh

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

+1

From Justin (P) Servicemembers and Veterans to Everyone:

+1 Josh

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

Everyone:

+1 Josh

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

+1 to Josh as well. As I said, there is much to like 

and I hope the Department uses this information to 

guide their NPRM.

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

+1 Michaela!

From Suzanne Martindale (A) state regulators to 

Everyone:

+1!

From David (P) - State hi ed agencies to Everyone:
66

Negotiated Rulemaking - 12/09/21

+1 - huge thank you!

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

I'm back as primary

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

I don't want my objection on PEP to be a stop to 

moving the language forward as it is. I appreciate 

the work of the subcommittee but I cannot vote yes 

where we are.

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

I support the caucus.

From Joe (P) State AGs to Everyone:

+1 Persis

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

Everyone:

+1 Joe payment counting

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

Everyone:

+100000 John, the comment was very disconcerting

From Jennifer Cardenas to Everyone:

+ John

From Michaela [P] Ind Students to Everyone:

+1

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

+1 thank you Marjorie

From Jennifer Cardenas to Everyone:

+1 Marjorie
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Negotiated Rulemaking - 12/09/21

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

Everyone:

+1 Marjorie

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

+1 Marjorie

From Joe (P) State AGs to Everyone:

+1 Persis

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

Everyone:

+1 Persis

From Suzanne Martindale (A) state regulators to 

Everyone:

+1 re data requests

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

Everyone:

+1 data

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

+1 Persis

From Jennifer Cardenas to Everyone:

+ 1 Persis

From Michaela [P] Ind Students to Everyone:

+1

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

Everyone:

+1 Persis

From Heather-PSLF Advisor to Everyone:
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Negotiated Rulemaking - 12/09/21

+1 Persis

From Michaela [P] Ind Students to Everyone:

32

From Joe (P) State AGs to Everyone:

+1 Persis

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

Everyone:

Thank you for following up with the specific language 

Persis.

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

Everyone:

+1 Persis - Thank you!

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

+1 Persis Thank you

From Jennifer Cardenas to Everyone:

+ 1 Persis

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

+1 PERSIS!

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

+1 Persis

From Justin (P) Servicemembers and Veterans to Everyone:

+1 Persis

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

Everyone:

+1 Persis

From Suzanne Martindale (A) state regulators to 
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Negotiated Rulemaking - 12/09/21

Everyone:

+1 persis - negative amortization is an anomaly in the 

consumer credit world, and not justifiable policy

From Heather-PSLF Advisor to Everyone:

+1 Persis

From Justin (P) Servicemembers and Veterans to Everyone:

+1 Joe

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

Everyone:

+1 Joe

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

Everyone:

+1 Joe

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

+1 Joe

From Heather-PSLF Advisor to Everyone:

+1 Joe

From Joe (P) State AGs to Everyone:

+1 David

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

Everyone:

+1 David

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

i don't think anyone has said that ED has done 

nothing.

From Jaye (P) FFEL Agencies to Everyone:
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Negotiated Rulemaking - 12/09/21

Q1: Under 685.209(k)(4)(v) do FFEL holders count 

payments made prior to consolidating as qualifying 

payments as currently outlined in FFEL regs 

§682.215(f)?

From Jaye (P) FFEL Agencies to Everyone:

Q2: re: 493C(b)(7) If a FFEL Borrower has 

undergraduate loans with 10 years repayment 

forgiveness credit and graduate loans with 5 years 

repayment forgiveness credit. When the loans are 

combined together through Consolidation, how much 

forgiveness credit does the new Consolidation loan 

receive?