Negotiated Rulemaking - 12/08/21

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 DEPARTMENT OF EDUCATION

OFFICE OF POSTSECONDARY EDUCATION

AFFORDABILITY AND STUDENT LOANS COMMITTEE 

NEGOTIATED RULEMAKING SESSION 3, DAY 3, MORNING

December 8, 2021

On the 8th 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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P R O C E E D I N G S

MS. JEFFRIES: Good morning and 

welcome back to session three, day three, of the 

affordability and student loans negotiated rulemaking. I 

hope that everyone had a good and restful evening and we 

will pick right back up where we left off yesterday. I 

am Cindy Jeffries from FMCS, and I will be your 

facilitator for this morning’s session. With that, let's 

go ahead and get the roll call going here. I will call 

out the constituency and then the primary and the 

alternate as we move through these. So first up, we have 

dependent students, Ms. Dixie Samaniego. It doesn't look 

like Dixie has joined us yet. And Mr. Greg Norwood will 

not be here today, so we will circle back to see if 

Dixie joins us. Independent students, Ms. Michaela 

Martin.

MS. MARTIN: Good morning.

MS. JEFFRIES: Good morning.

MS. MARTIN: I will be on camera 

shortly.

MS. JEFFRIES: Okay. Thank you, 

Michaela. Dr. Stanley Andrisse.

DR. ANDRISSE: Morning, everyone.

MS. JEFFRIES: Good morning. Student 

loan borrowers, Ms. Jeri O'Bryan-Losee.
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MS. O'BRYAN-LOSEE: I'm not usually 

this early in the roll call, morning.

MS. JEFFRIES: See, I wanted to switch 

it up, Jeri, just for you.

MS. O'BRYAN-LOSEE: Good morning, 

everybody.

MS. JEFFRIES: And as alternate, we 

have Ms. Jennifer Cardenas.

MS. CARDENAS: Good morning, everyone.

MS. JEFFRIES: Good morning. Legal 

assistant organizations that represent student and/or 

borrowers, we have Ms. Persis Yu.

MS. YU: Good morning.

MS. JEFFRIES: And as the alternate, 

we have Mr. Joshua Rovenger.

MR. ROVENGER: Morning, everyone.

MS. JEFFRIES: Good morning to both of 

you. U.S. military service members, veterans and groups 

representing them, as primary we have Mr. Justin 

Hauschild.

MR. HAUSCHILD: Good morning, folks.

MS. JEFFRIES: And as alternate, Ms. 

Emily DeVito. Emily may not have joined us yet, but 

welcome Justin. State attorneys general, we have Mr. 

Joseph Sanders as primary.
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MR. SANDERS: Good morning, everyone.

MS. JEFFRIES: And Mr. Eric Apar as 

alternate.

DR. APAR: Good morning, everyone.

MS. JEFFRIES: Good morning. State 

higher education executive officers, state authorizing 

agencies and/or state regulators of institutions of 

higher education and/or loan servicers, primary is Dr. 

David Tandberg.

DR. TANDBERG: Good morning.

MS. JEFFRIES: Prime alternate is Ms. 

Suzanne Martindale.

MS. MARTINDALE: Hi, good morning.

MS. JEFFRIES: Good morning. And I 

just have to say that I always try to get through your 

constituency name in one breath and it's not working 

yet. So. Individuals with disabilities or groups 

representing them. Primary is Ms. Bethany Lilly.

MS. LILLY: Good morning, everybody.

MS. JEFFRIES: And alternate, is Mr. 

John Whitelaw.

MR. WHITELAW : Good morning, all.

MS. JEFFRIES: Good morning. Financial 

aid administrators at postsecondary institutions, 

primary Mr. Daniel Barkowitz.
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MR. BARKOWITZ: Good morning and happy 

holidays.

MS. JEFFRIES: Good morning and same 

to you. And as alternate, Ms. Alyssa Dobson.

MS. DOBSON: Good morning, everyone.

MS. JEFFRIES: Good morning. Two-year 

public institutions of higher education, we have Dr. 

Robert Ayala.

DR. AYALA: Good morning, ladies and 

gentlemen.

MS. JEFFRIES: And as, I'm sorry, 

alternate, we have Dr. Christina Tangalakis.

DR. TANGALAKIS: Good morning.

MS. JEFFRIES: Good morning to you 

two. Four-year public institutions of higher education, 

Dr. Marjorie Dorime-Williams.

MS. MACK: They'll be joining a little 

later as well as the alternate Ms. Rachel Feldman.

MS. JEFFRIES: Okay. Alright. Thank 

you. Private nonprofit institutions of higher education, 

Ms. Misty Sabouneh.

MS. SABOUNEH: Good morning, everyone.

MS. JEFFRIES: And as alternate, Dr. 

Terrence McTier Jr.

DR. MCTIER: Good morning.
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MS. JEFFRIES: Good morning, both of 

you. Proprietary institutions, Ms. Jessica Barry.

MS. BARRY: Morning, everyone.

MS. JEFFRIES: And as alternate, Dr. 

Carol Colvin.

DR. COLVIN: Good morning.

MS. JEFFRIES: Good morning. Minority 

serving institutions, we have Ms. Noelia Gonzalez.

MS. GONZALEZ: Good morning.

MS. JEFFRIES: She is actually the 

alternate but has been serving as primary for these 

negotiations. Federal family education loan lenders 

and/or guaranty agencies, Ms. Jaye O'Connell.

MS. O'CONNELL: Good morning. And I 

believe Will is going to be late.

MS. JEFFRIES: Okay. So Mr. Will 

Shaffner, as the alternate, will be joining us later. 

Accrediting agencies, Dr. Heather Perfetti.

DR. PERFETTI: Good morning, everyone.

MS. JEFFRIES: And as alternate, Dr. 

Michale McComis.

DR. MCCOMIS: Good morning.

MS. JEFFRIES: Good morning, both of 

you. U.S. Department of Education is Jennifer Hong.

MS. HONG: Good morning, everyone.
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MS. JEFFRIES: Okay. Did I miss any of 

our primary or alternates?

MS. MACK: Dixie has joined us.

MS. JEFFRIES: Pardon me?

MS. MACK: Dixie Samaniego has now 

joined us.

MS. JEFFRIES: Okay. So circling back 

to Dixie from dependent students, Ms. Dixie Samaniego 

has joined us. Welcome Dixie. In addition to the primary 

and alternates, we have two esteemed non-voting advisers 

that are present, Ms. Heather Jarvis on the topic of 

PSLF.

MS. JARVIS: Good morning.

MS. JEFFRIES: Good morning. And Dr. 

Rajeev Darolia on economic and higher education policy 

and data.

DR. DAROLIA: Hello.

MS. JEFFRIES: Good morning. There are 

also three non-voting department office of general 

counsel officials present throughout the negotiations. 

Today, I know we have Brian Siegel.

MR. SIEGEL: Good morning, everyone.

MS. JEFFRIES: Good morning. And Todd 

Davis. Not sure Todd is with us this morning or not. And 

Soren Lagaard. So from our office general counsel, it 
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looks like at this point we have Brian Siegel, welcome 

Brian. We will, our esteemed Vanessa will be running 

screen share and documents behind the scenes for us this 

morning. So welcome, Vanessa.

MS. GOMEZ: Good morning, everyone.

MS. JEFFRIES: Good morning. So in 

terms of our agenda today, it is what we have planned is 

that we will now be returning to the PSLF discussion 

that we were in the midst of yesterday when we ended. 

Our notes show that Jaye would be our next speaker, so 

we will continue with that. But at 11:00 a.m., we will 

pivot to the Prison Education Subcommittee presentation. 

It is anticipated that the subcommittee's presentation 

will take that full hour, taking us up to lunch. So with 

that in mind, we are asking that all questions are held 

during the presentation so that the presenters can get 

that presentation completed, you can contemplate it over 

your lunch period and we will open back up right after 

lunch with questions and answers to the presenters in 

the subcommittee. I also want to make note that we will 

at some point today be returning to IDR. Okay? So with 

that, let's I see that Carol Colvin will be in as the 

negotiator in place of Jessica Barry this morning from 

proprietary institutions. Welcome Carol and Dr. McTier 

will be the primary for the prison education discussion 
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today, so we'll make note of that again when we get into 

that. With that, let's return back to the PSLF. We 

believe that Jennifer from the Department had walked 

through the entire document, although there are two 

issues that you will take consensus on issue one or I'm 

sorry, issue four and issue five. Those have been 

identified as issues five would be the definitions up to 

qualifying repayment plans on page four, issue four 

would be everything above that qualifying repayment plan 

segment. But at this point, we were in the midst of 

having discussion and questions on the entire document. 

So Jaye, are you ready to kick us off? You were next in 

line yesterday.

MS. O'CONNELL: Yes, thank you. I am 

ready. So I just wanted to thank the Department for the 

clarification about the distinction of the waiver versus 

the proposed regs in terms of counting underlying FFEL 

payments and the question that we had pertains to the 

report the reports of information. I think the 

annotation on the session to proposed language made 

reference to NSLDS. I was talking about the Department 

making the notices to borrowers, FFEL borrowers, on PSLF 

as opposed to another disclosure that we agreed maybe 

isn't helpful. So I think the question that occurred to 

us as we looked at the language sort of without that 
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bubble comment bubble on it was how is that loan data 

helpful in or necessary in the notifications about PSLF 

eligibility on the FFEL loan, if we're not counting, you 

know, underlying payments? So. I can put that question 

in the chat, if that's helpful.

MS. JEFFRIES: Why don't you go ahead 

and do that, Jaye. I'm not sure the Department has an 

immediate answer to that question and may need to get 

back to you on it. Thank you, Jaye. Michaela.

MS. MARTIN: I was just wondering if 

maybe you could elaborate a little bit on what that 

concern is? Because I think maybe I'm not, I'm not 

understanding that peace.

MS. JEFFRIES: Is that a question to 

Jaye?

MS. MARTIN: If she doesn't mind?

MS. O'CONNELL: No, I mean, we all 

report our FFEL loans to NSLDS. So there is data. You 

know, the availability of the loan that there's data in 

NSLDS that would that the Department already has access 

to. This particular expansion of reporting to include 

additional repayment information, doesn't seem germane 

to a notice about PSLF eligibility. So because it's not 

about counting payments, we just wondered. We were just 

curious about the need for the additional detail 
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relative to notification about PSLF eligibility.

MS. MARTIN: So you're saying to the 

student or to the Department? I'm not I'm not making 

that connection I guess. You're saying you don't want to 

have to send in a notice to the student or to.

MS. O'CONNELL: No, I'm sorry. In 

session two, well, maybe it was session one, the draft 

language was that FFEL holders would make a disclosure. 

And then there was a lot of conversation about how 

disclosures are not really useful. So the change between 

session one and two was that holders would provide more 

data to NSLDS so that the Department could make notices 

to the students. At least that's my understanding. And 

then as we were looking at the data that they're 

requiring, we didn't quite understand the connection 

between that and what's already in an NSLDS that would 

allow them to make notices. So.

MS. MARTIN: And that additional data 

is?

MS. O'CONNELL: It's like the loan 

history detail. So, they said related to deferment, 

forbearance, repayment plans, delinquency and contact 

information. Maybe Brian can help me.

MS. MARTIN: Okay. So FFEL doesn't 

want to give over the loan history to, that's what it 
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is?

MS. O'CONNELL: I was asking about the 

connection of it related to the notifications on PSLF.

MR. SIEGEL: Right. Just, Jaye, if I 

understand you correctly, you're talking about the 

change to 682.414 B 4 I think it is on page 10 of the 

draft? Okay. The reason we're looking for this 

additional information, as I Understand it, is that even 

though these loans are being held by guaranty agencies 

and lenders, we get a lot of inquiries about them, 

particularly on PSLF. So while we will certainly tell 

the borrowers that under current law, they don't qualify 

for PSLF because they are not, they have a FFEL loan 

rather than a direct loan. We would also want to be able 

to tell them about that there are certain repayment 

plans which we can tell them whether they're in the 

repayment plan or not, that would qualify if they moved 

into direct loan. And we could we also find that this 

information is necessary generally as part of our

ability to talk to students. So that's the goal here.

MS. JEFFRIES: Thank you, Brian. 

Persis.

MS. YU: Thanks, and I appreciate I 

appreciate this this discussion, because I think I think 

this is actually a pretty important point about what 
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information gets. I don't, as I'm thinking about as this 

relates back to the Income Driven Repayment 

conversation, this certainly seems very relevant when 

we're talking about what payment plans pre consolidation 

would count. Obviously, that's a little bit different, 

as we've discussed between PSLF and Income Driven 

Repayment, but that seems like important information. 

Because as you know, when I worked with borrowers and 

NSLDS and I realized that that is a little bit different 

than what you guys have in your systems, right? Like all 

we know is in repayment or in deferment or in 

forbearance, we don't have the specifics about what kind 

of deferment, what kind of repayment plan. And I think 

that that would be particularly useful information to be 

able to have on NSLDS. You know, I don't, I'm not sure 

if like, PSLF is like where, in my opinion, it's the 

most critical, but I think it is critical information to 

get to the Department, and I think that it would be I 

think that this would be helpful information, certainly 

for advocates who help borrowers going through the 

NSLDS. And, you know, sometimes knowing that there are a 

lot of different departments, especially in the in the 

FFEL program, it could help pinpoint folks who should be 

in different plans. So I would be supportive of

increasing the amount of information provided.
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MS. HONG: If I could just jump in. I 

think that's I think that's right, so initially, you 

know, we wanted to have a meaningful requirement. 

Initially we had said for the lenders just to notify 

borrowers regarding their eligibility for PSLF. And 

rather, we wanted to get more detailed information on 

borrower status, borrower loan status, how they had 

been, what types of deferment and forbearances that 

they're on to give us more information going forward.

MS. JEFFRIES: Thank you, Jennifer. 

Daniel your next but before you begin, I do need to 

announce that Anne Precythe from State Department of 

Corrections is with the committee this morning. Anne, 

are you available to acknowledge? Okay. She's showing 

that she is here, but she is off camera and muted, so I 

just wanted to make note for the record that she is here 

today. So Daniel.

MR. BARKOWITZ: Thank you. Joe, unless 

you want to is your point to what was already discussed, 

at which point I'm happy to let you go first. Yeah, why 

don't I why don't I let Joe go before I do and then I'm 

happy to introduce a new topic when Joe's done.

MS. JEFFRIES: Okay, thank you.

MR. BARKOWITZ: Joe, you're on mute, 

though.
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MS. JEFFRIES: Joe?

MR. BARKOWITZ: So, I'm sure it's 

brilliant whatever you are going to say.

MR. SANDERS: It's a question. So my 

personal framing for how I'm thinking about PSLF is what 

are we doing to increase the abysmal approval rate on 

PSLF applications, it's like 90% or denied, right? So 

what are we doing to change that going forward? And so I 

think that the, you know, as Jaye discussed the history 

of this section. I think the Department's intent had 

been rather than having the FFEL servicer do the 

disclosure that they were going to do the disclosure 

themselves. And so I think that letting borrowers know 

they have the wrong loan type is an important step in 

improving the approval rate on PSLF applications. And 

so, you know, I'd like I'd be interested to hear from 

the Department, if not now at some point during our 

discussion, what their plans are to let borrowers know, 

hey, you're in the wrong loan type.

MS. JEFFRIES: Okay. It may be that 

the Department needs some time to look at that and 

respond. So Joe, if you don't want to lose track or if 

you think it would be beneficial, could you put that in 

the chat so that it can be circled back to? Alright, 

Daniel, you are up now.
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MR. BARKOWITZ: Thank you. I'm going 

to do a compliment sandwich. So I want to start with 

some really positive things that are in this and raise 

my concern and then end again with some compliments. I 

really appreciate the Department's use of the 3.35 hours 

per credit taught. I think that's the right move, and I 

appreciate the Department's movement on that. I also 

want to say the 9 month, 30 hours per week for public 

school educators, I think is really important as well 

that that defines full time so that educators who don't 

work during the summer aren't penalized for that period. 

So kudos to the Department on both. I think that's a 

really important step forward. I will say, and I'm 

prompted in this in a bit by a resource that I plan on 

distributing or actually Kayla, I've asked you to 

distribute to the committee and that is a report that 

was produced and some of us, as negotiators, have seen

this report by the Joyce, Dr. Joyce Pain Center for 

Social Justice at the Thurgood Marshall College Fund. 

And it really calls into question the idea of the care 

economy and the idea that many of the positions that, 

thank you Kayla, many of the positions that provide 

public service to date are actually housed not in 501c3 

or public companies, but really in the for-profit space. 

So I understand the Department's hesitancy and concern 
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about moving into that space. But on behalf of some of 

the constituents I serve, I'll just call out everyone 

who works in private, not for-profit colleges who would 

qualify under 501c3, but private for-profit colleges, 

proprietary colleges would not. And it just seems a 

failure of vision to not be broad based here. You know, 

I'm thinking about the issues that were raised yesterday 

about the doctors in California and Texas or any of 

these pieces. There's so much of the care economy that's 

happening, either in self-employed individuals who are 

working in institutions that provide public care or forprofit institutions. And I really think we're missing an 

opportunity here to be bold and to be brave and to say 

that these roles serve a valid public good. And so I 

will say one of the pieces that I'm really struggling 

with as an example is under the definition of public 

service.

MR. HAWKINS: Thirty seconds Daniel.

MR. BARKOWITZ: Thank you, Kevin, my 

first time hitting the limit. We mentioned public 

education as a very small piece that should just be 

shifted to education, the type of employers handled 

elsewhere. So I'll get off the soapbox and end with a 

compliment. Thank you again for the work that's been 

done here. I think there is some positive here. I've 
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done Kevin.

MS. JEFFRIES: Okay. Thank you, 

Daniel. Heather, the PSLF advisor, you're next.

MS. JARVIS: Thank you, Cindy, and 

thank you, Daniel. I've given some more thought to this 

in light of the Department's sharing of their serious 

reservations about including employers and for-profit 

settings. And I what I heard and have heard from the

Department is that it's there are problems with where to 

draw lines and how to implement and administer borrower 

initiated consideration of their roles within these 

organizations. And I understand the Department to be 

saying that administering a program with looking solely 

and exclusively at the organizations is what is 

preferred by the Department, rather than looking at 

individual borrower circumstances. So when looking at 

business organizations, I think we all understand 

there's there are certain organizations that are exempt 

from taxation by the Internal Revenue Service, including 

C3s and other types of exempt organizations or nonprofit 

organizations. When you look at for-profit 

organizations, there are several different business 

organizations as well. They are not tax exempt, but they 

include things like corporations, but also things like 

people who are self-employed include partnerships 
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include public benefit corporations that are in fact 

organized for the benefit of the public, but are not 

exempt from taxation. So to the to the extent that we're 

interested in looking at business organization as part 

of how to get at who's doing public service in a way 

that the Department can administer comfortably, I think 

it's worth recognizing that there are many different 

business entities across both nonprofit and for-profit, 

and that distinction in itself is not particularly 

useful at getting at the public service of a of an 

organization. And I will specifically point out in that 

regard with the language we're presently considering in 

the proposal I had one suggestion for the department to 

consider and for this committee to consider. Presently, 

the definition of employed is a person who is hired and 

paid by a public service organization who receives a W2. Perhaps we could expand that language to include 

people who receive W-2s from nonprofit public service 

organizations that are already approved as eligible or 

who receive a 1099 form from such an organization. And 

that might allow us to include the technically or 

actually, in some cases, for-profit organization of 

someone who is self-employed but is staffing, for 

example, a real, bona fide C3 or government 

organization. And that would serve to exclude people who 
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work for big corporations that are in the business of 

making profits that allow people to do public service on 

a full time basis and still potentially qualify even if 

they are in a for-profit self-employed circumstance. So 

I would encourage some consideration or be interested in 

feedback about the idea of including 1099 employees who 

are receiving an IRS form from the sort of organization 

the Department is already included and understands is 

necessarily included in public service. So this does not 

mean that they're working for a for-profit entity, 

necessarily. They're doing their work hired and paid by 

a public service organization receiving a 1099. So 

that's one thought in that regard.

MS. JEFFRIES: Thank you, Heather. 

Bethany.

MS. LILLY: So. I want to return to a 

point that we made in both the first and the second 

sessions on this, which is that we would be, I suspect, 

slightly more open to the Department's very firm belief 

that they shouldn't be including private organizations 

if other improvements were made to the IDR plan. Because 

we are effectively segmenting out populations, you know, 

after the pandemic, where we saw grocery store workers 

and other frontline providers who, to my definition, 

should be essential, workers should be people eligible 
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for public service loan forgiveness. They certainly 

worked a heck of a lot harder than I did sitting in my 

house working remotely for the past two years. Like 

those folks aren't getting captured, they're eligible 

for IDR, and that's not fair. I don't, this may sound 

simple the Department, but I think this is where at 

least a lot of my concerns about this distinction lie in 

that you have a lot of low wage workers who are going to 

get stuck in IDR rather than Public Service Loan 

Forgiveness, despite the fact that they are doing really 

hard work and we should be valuing that work. And I 

cannot think of better examples than the essential 

workers during the pandemic. And so if the Department 

wants to move on IDR on making IDR a more inclusive

program for people, I am less concerned about, including 

private sector businesses in Public Service Loan 

Forgiveness. But if the Department is not going to move 

on the IDR changes that we are proposing that the many 

negotiators support, I don't think, I mean, this is 

where some of the tension is coming up. I just want to 

make that very clear for the Department. That it's 

because we are worried about these low wage workers who 

have no option other than IDR right now. And so just to 

clarify that, and I see a lot of questions in the chat 

that at least is where my concerns are coming from that 
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these folks are getting, sorry, I'm trying to think of a 

word that I can say in a public setting like this that 

isn't what I'm thinking of, but like, seriously, like, 

these are folks that are being mistreated by the current 

IDR system to an extended degree. So these are the exact 

folks the Department wants to target with the 

improvements to IDR. And those are the folks that I am 

worried are not getting included in Public Service Loan 

Forgiveness because it's such a better program. It is 

such an easier program for people to comply with, 

especially with the automation improvements from the 

Future Act that I'm really excited to see rolled out. So 

just so that that is excruciatingly clear.

MS. JEFFRIES: Thank you, Bethany. 

Michaela.

MS. MARTIN: Yeah, you know, I will, 

say it forever, I don't really like having to determine 

someone's value or worth based on the type of labor that 

they engaged in. But if we are going to do that and not 

off of I think that it becomes even more problematic 

when we're only looking at the organization structure. 

501c3 in education in particular have been moving 

towards using contract work so 1099s becomes incredibly 

important. But also, you know, our educational systems 

K-12 and higher ED and 501c3 all have been historically 
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exclusionary of people of color. And so I think that by 

not ensuring that we're opening this up to all public 

service workers, we're really just perpetuating systems 

of oppression, right? Like I, I have a lot of strong 

feelings like that, and that includes government work 

too, right? These are the three major folks that have 

benefits and health care, which also. And then when you 

consider that folks who are not being hired on as an 

employee and are doing contract work, who are those 

people that are not getting hired right, typically 

marginalized communities or work that they don't they 

don't value enough to keep on full time. And so I just I 

have very, very strong feelings about limiting this to a 

501c3, which is like basically a corporation and its own 

funded by corporations, education, government, health 

care workers, like if those were the distinctions of the 

type of work, I think would be a different conversation. 

But we're not. We're limiting it to the type of 

corporate structure an organization has to base, whether 

or not you're worthy of debt relief. And that just is 

such a weird construct to me that I, I just am not going 

to be able to support the current limitations on 

business structure.

MS. JEFFRIES: Thank you, Michaela. 

Persis.
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MS. YU: So I echo vehemently 

everything that Bethany and Michaela just said. I think 

that's incredibly on point that we are, you know, 

limiting this in a way that is so inequitable, but also 

importantly, we're limiting it in a way that is contrary 

to the statute. The statute allows these folks to get 

Public Service Loan Forgiveness. And so by excluding 

them, you're actually contrary to the statute. So we are 

purposefully excluding groups that are more likely 

marginalized in a way that is not supported by the 

language or the intent of the statute. And so I think 

that that's something that the Department needs to take 

back and reconsider.

MS. JEFFRIES: Thank you, Persis. Any 

other comments on this? Persis.

MS. YU: So I will defer to others if 

they want to continue on the for-profit distinction, but 

I had a comment that about a different portion of the 

regulation. So Heather or Joe, okay. I also wanted to 

return back to the way to the counting of payments, we 

had very lengthy discussion about counting of payments 

and forbearance and deferment and so without going into 

a lengthy discussion, I just want to make sure that to 

the extent allowed by the law, we are mirroring the 

comments that we made about how to count payments in 
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this discussion. So, for example, in the Hold Harmless 

period, I would like to not just be forbearances, but 

any other repayment plans. Also, I think that we need to 

be counting forbearances from the time before these 

regulations are finalized.

MS. JEFFRIES: Thank you, Persis. 

Heather, PSLF adviser.

MS. JARVIS: Thank you, Cindy. I 

wanted to raise with regard to payment counting, and we 

can revisit this in the income driven discussion. The 

Department has issued some subregulatory guidance with 

regard to married borrowers in community property 

states. And I want to suggest that that be included in 

the regulatory language to the extent that married 

borrowers have to file separate tax returns in order to 

make payments based on their separate incomes. Borrowers 

and community property states are situated differently 

in that their married filing separately tax forms 

reflect 50% of their combined income with their spouse 

rather than their sole income. So I suggest that we 

consider that to be an issue related both to Public 

Service Loan Forgiveness, but particularly counting of 

payments under both this program and other income driven 

programs. I would also like to raise for the 

Department's consideration, there was previously 
26

Negotiated Rulemaking - 12/08/21

language in the in the regulations concerning religious 

entities. The general rule in federal programs is that 

religious entities are eligible to participate and that 

is the case here as well. But the Department has in the 

past limited borrowers in those activities to exclude 

the time they spend doing things like conducting 

worship, for example. And so I want to raise for the 

Department's consideration reinstating the safeguard 

that ensures the taxpayers are not funding religious 

activities and the reason this is important to me and 

others who are advocates of Public Service Loan 

Forgiveness to be as inclusive as possible, including 

people who work in religious settings, the bedrock 

constitutional principle that taxpayer funds cannot 

support religious activities. So it's important to 

narrow the program to ensure its constitutionality so 

that it is not at risk of a challenge in in that regard.

MS. JEFFRIES: Thank you, Heather, 

Joe.

MS. HONG: So if I could just go 

ahead. So Heather. Just to your earlier point regarding 

the 1099 issue, I know that we've made explicit the 

issuance of a W-2 that we've always we've always 

interpreted the employ language to mean those to whom 

the organization issues a W-2. So I just wanted to 
27

Negotiated Rulemaking - 12/08/21

clarify that this is not a narrowing from the current 

regulations, just a clarification. Also regarding your 

reference to the guidance that we provided, because 

we've issued the guidance, the guidance is an 

interpretation of the regulation, we feel like it's 

appropriately subregulatory. So, we, unless there's, I 

mean, I don't understand the argument for having to 

include that in the regulation, it's current and it's 

effective and it's an interpretation of the regulation, 

so we didn't feel the need to include it in regulatory 

language. Finally, your point about. what was that, what 

was that last point Heather, trying to keep track.

MS. JARVIS: About excluding certain 

kinds of certain kinds of religious activities.

MS. HONG: Yes, as we've, we've 

rescinded that previous inclusion.

MS. JARVIS: And that just to be 

clear, that that's conscious on the part that's 

intentional. It was it was in place, as you are probably 

aware, from 2008 to 2020, 2022, it was in place for a 

very long time. So you, I just wanted to make sure that 

that was intentional because I know the language we 

started with in session one was very, very old 

regulatory language that had been negotiated back in 

2008. But with the exception of that provision was 
28

Negotiated Rulemaking - 12/08/21

notably absent so I just wanted to make sure that it was 

deliberate on the part of the Department.

MS. HONG: Yes.

MS. JARVIS: The only other thing 

Jennifer, if I may, with regard to the married filing 

separately thing, as I recall, the subregulatory 

guidance referred specifically to direct loans and the 

Department had taken the position that it wasn't going 

to mandate that same treatment for FFEL borrowers. 

That's why I thought it could still be an issue for 

regulatory language in the IDR provisions.

MS. HONG: Thank you. We'll go back 

and look at that closer.

MS. JARVIS: Thank you.

MS. JEFFRIES: Okay, Joe.

MR. SANDERS: Thank you. I want to go 

back to something that Heather put in the chat earlier 

that had that it was like the top three reasons why 

people are denied PSLF and the first the first one there 

is counting payments. And so, in looking at the 

Department's proposal here, I don't think enough has 

been done to fix the problem of counting payments as 

PSLF. And I think that we need to do more to up the 

acceptance rate of PSLF applications because it's 

really. I appreciate the Department putting the Hold 
29

Negotiated Rulemaking - 12/08/21

Harmless provision here in PSLF as well, I think that 

it's a step in the right direction. But I don't think 

that, particularly in the context of PSLF that it really 

fits this the spirit of the program, right? I think of 

PSLF as being about time and not so much about money. 

The idea here is that people give 10 years to public 

service, and in exchange for that 10 years, their loans 

are forgiven. And the Hold Harmless provision here to me 

feels like people like buying time back for an error 

that in the case of forbearance during wouldn't have 

been their own, right. So I think we need to keep the 

focus on time and less on money, which is what the Hold 

Harmless provision does. I'm concerned that people that 

that won't be able to necessarily make the payments to 

the extent that they even jump through the 

administrative hoops to figure out what they would have 

owed. And so the Department is well aware, I sent a 

proposal that would get around some of the concerns 

about authority on counting forbearances. And I'll be 

very brief here, but it has to do with pages five and 

six. And what I suggested was a meshing of IDR and PSLF 

where you count the forbearances as in the IDR plans. 

And then you say, if you've made a qualifying payment on 

IDR plan it counts, and I think that works with the 

authority, which specifically looks at ICR talks about 
30

Negotiated Rulemaking - 12/08/21

ICR. So I'm at time, I'll stop there. But I think that 

we need to do something to fix the counting payment 

problem. And I and I don't think that what's in here 

does it.

MS. JEFFRIES: Okay. Thank you, Joe. 

Daniel.

MR. BARKOWITZ: So, thanks Joe. You 

stole a little bit of what I was going to say, but I 

think I'd make the same point that I made yesterday when 

we had the IDR conversation. The way the regulation 

reads, we are now going to count these deferments or 

these deferments and forbearance types, it doesn't say 

prospectively. So the regulation reads, these types of 

deferments and forbearances count. So I would make the 

argument, as I did yesterday with IDR, that that 

actually is a broad based language that would include 

retrospective viewing of those periods. So again, I 

understand this is my question yesterday about date of 

enactment versus the actual deferment period or 

forbearance period. I don't see anything in the 

regulation that says only from this point forward with 

these deferments or forbearance periods count, and I'm 

looking specifically at subsection or romanette V on 

page six, it just simply says receiving any one of the 

following deferments. So I think that would address 
31

Negotiated Rulemaking - 12/08/21

Joe's concern if that's the interpretation, because 

again, that is not a prospective view that includes a 

retrospective view. I'm sorry my dogs are going to 

comment, but I also actually have one other piece I 

wanted to say, and that is, I found the missing H. So I 

compared the list of deferments here to the list of 

deferments on IDR, and it appears there is one missing 

on the IDR section that's not that is here, and that is 

AmeriCorps forbearance. AmeriCorps forbearance, 

AmeriCorps forbearance appears in this PSLF proposal, 

but does not appear on the IDR proposal. I understand 

unemployment. It's another one. I get the unemployment 

one because of the whole nature of Public Service Loan 

Forgiveness. But the AmeriCorps one seems to me to be an 

omission not a not an act of particular focus. So 

Jennifer, I'm trying to earn my reputation as an eagleeye participant, so hopefully you can add that one back 

on the IDR as well.

MS. HONG: I appreciate that, Daniel. 

We'll take a look at it. My sense is that was actually 

intentional given the inclusion of AmeriCorps 

forbearance exclusively in PSLF but will go back and 

take a look at that just to double check. As far as the 

Hold Harmless procedures, I mean, I think that this, I 

mean, that's what you described, Daniel, that is why 
32

Negotiated Rulemaking - 12/08/21

actually we feel like this language is more 

comprehensive and that it does its prospective. If the 

procedures are there, we're making it explicit, we're 

acknowledging that borrowers may have been steered into 

forbearance incorrectly and therefore whatever time that 

they spent in forbearance would count as monthly 

payments. So it does look both retroactively and 

prospectively. I just want to go over again. I 

appreciate how Joe's cast the public service loan 

program. And you're right. Ten years of service. But I

don't think we can skirt around the fact that we have to 

make the statute requires monthly payments. And so that 

is a big piece of it. And we've done some. I just don't 

want to. I don't want to be dismissive of expansion 

here, and we've expanded full time definition, we've 

made that much more inclusive for people in terms of the 

three issues that Heather enumerated in terms of 

limiting eligibility for PSLF. We've taken that we've 

expanded it in terms of including definition for nontenure track employment, including an option for the 

employer attestation and significantly expanded what 

constitutes a monthly payment. And that includes 

flexibilities for multiple installments for payments, 

conformance with their repayment plans, inclusion of the 

deferments and forbearance those monthly payments, 
33

Negotiated Rulemaking - 12/08/21

flexibility we built in the flexibility of the date of 

payment versus when the employment occurred to make sure 

that borrowers aren't stuck while, you know, I was 

transitioning from one employer to the next, but I made 

my payment on this date. None of that matters now, so 

long as it's proximate to the employment. The payments 

made on direct loans prior to consolidation, and this 

is not insignificant, the inclusion of these Hold 

Harmless procedures. So in terms of there being the 

number one reason for common reason for ineligibility in 

terms of insufficient qualifying payments, we've greatly 

expanded what constitutes a qualifying payment. We've 

greatly expanded what constitutes full time employment 

and in terms of ineligible loans, that's statutory, 

that's not something we can do anything about. But boy, 

we did something about it under the PSLF waiver. And if 

you have underlying FFEL loans, please, you know, avail 

yourself of this waiver before next year so that you can 

before next October so you can reap the benefits of 

PSLF. And going forward, we've, on page 10, as Jaye 

discussed earlier, that is our remedy going forward for 

those FFEL borrowers that are unable to, for whatever 

reason, consolidate prior to next October.

MS. JEFFRIES: Thank you, Jennifer. 

Joe.
34

Negotiated Rulemaking - 12/08/21

MR. SANDERS: Thank you, and I do want 

to compliment the Department on the PSLF labor. I think 

that this is a great opportunity for people. I think 

it's a bold step by the Department and it gets at one of 

the main reasons why people have been ineligible. They 

have FFEL loans. This, as I understand what we're doing 

here with this regulation that this is prospective, this 

is like post waiver. What are we doing to help? And I'd 

be interested to see if the Department has this data, of 

the ineligible payments that people have. Right? You 

don't have sufficient payments. What types of deferments 

or forbearance is are really feeding into that right? Is 

it the types that we have listed here? Anecdotally, and 

I could be wrong here because I don't have the data, but 

anecdotally, I think that there's probably a large 

volume of voluntary forbearances because those are the 

easiest to put people in. And this proposal, while I 

appreciate the expansions that are there, it doesn't 

touch that, it doesn't touch that piece. It doesn't 

touch those voluntary forbearances, it doesn't touch 

where, you know, in our investigations we were seeing 

servicers steer people into those voluntary forbearance. 

And, you know, this is a very, I represent a group of 

state agencies, and so our employees are the people 

that, you know, a big group of people that would qualify 
35

Negotiated Rulemaking - 12/08/21

for this. And so we have we have a vested interest in 

having our employees qualify for this, having our 

employees believe that if they come to work for us that 

they'll qualify for this. And right now, that's not the 

case. You know, I've done trainings for like for NAG, 

for state AGs nationwide. And normally when I do NAG 

webinars, there's like some people on, but not a lot. 

But when I did the PSLF webinars, there was like 

hundreds of people in my email box was like deluged. 

And, you know, people had tons of questions. How do I do 

this? I got denied. What do I do? And so I think from 

the state AG perspective, we've got to do something to 

fix this counting payment problem. I've given the 

Department a proposal, you know, we need to see more 

people qualifying, and we want to fix that with the 

waiver is great. We want to see prospectively that 

boldness continue, so I'll stop there.

MS. JEFFRIES: Okay, thank you. 

Bethany.

MS. LILLY: I just want to echo 

everything that Joe just said. As somebody who is 

currently going through Public Service Loan Forgiveness, 

it is incredibly complex and incredibly difficult to 

qualify for this program. And anything that the 

department can do to simplify that is going to result in 
36

Negotiated Rulemaking - 12/08/21

more folks counting. So counting forbearances, I mean, 

yes, you've expanded that somewhat, but if there's any 

additional steps the Department can take there, I think 

that matters a lot. So just from my personal experience, 

I have to echo everything that Joe said. It is 

incredibly difficult to negotiate this program. And I 

think the Department should be thinking as big as they 

can to make sure it is easy for people as possible.

MS. JEFFRIES: Thank you, Bethany. 

Seeing no further hands and the fact that we have a few 

minutes left before the prison education program, I'd 

like to give everyone just a real quick break to stretch 

and take care of whatever they need to prior to 

commencing that presentation. Justin, you've raise your 

hand?

MR. HAUSCHILD: Yeah, I did, and I 

kind of wanted to wait until everyone else was wrapped, 

but if people could just indulge me for a few moments, 

I'll try to make this very quick. Would that be okay, 

Cindy?

MS. JEFFRIES: Sure, sure.

MR. HAUSCHILD: Thanks so much. Okay, 

so I don't want to diminish from the points that my 

fellow negotiators have made here. I think there are a 

number of really important things that have been raised 
37

Negotiated Rulemaking - 12/08/21

that probably warrant some additional consideration. But 

I did want to take a second to speak on behalf of my 

constituency specifically and to thank the Department 

for much of what they've done here. There are a number 

of substantial barriers to service member and veteran 

forgiveness in PSLF and we think the Department has 

taken several steps in this language to address those. 

One of the issues that isn't address is FFEL loans 

underlying pre consolidation payments, but we understand 

there are issues there and the Department's working 

within the authority it has. Employment certification is 

a major issue for service members and veterans. We think 

the automatic match and automation is going to really 

help folks with that. We just heard from the service 

member or actually a veteran post-transition this week 

who had difficulties doing just that. We think folks 

have difficulties with being steered toward forbearances 

and deferment, particularly military deferment in 

forbearance, which is which is covered here. So there's 

a whole host to think, and I have to say two incorrect 

payments is another major issue for service members and 

veterans. And we do think the steps the Department's 

taken here, while in fairness, perhaps more can be done. 

And I think Joe has made a fair point about that, that 

there are substantial steps that have been taken with 
38

Negotiated Rulemaking - 12/08/21

this language to really help those folks. I just want to 

thank the Department for the steps they've taken here 

with this language and recognize even if there are areas 

for improvement that we think much has been done here to 

help service in veterans with PSLF forgiveness. So thank 

you.

MS. JEFFRIES: Thank you, Justin. 

Josh.

MR. ROVENGER: Thanks, I'll be super 

quick. So I just.

MS. JEFFRIES: You subbed in for 

Persis, is that correct?

MR. ROVENGER: Yeah, just for a quick 

comment. Thank you. So with respect to the PSLF waiver, 

I think we all agree that it was a great use of the 

Heroes Authority and I don't think this has come up but 

just wanted to flag at the Department can utilize that 

authority and should utilize that authority in a variety 

of other contexts, including most notably to fulfill the 

President's commitment to broad scale debt cancelation. 

So I would urge the Department to consider how it can 

utilize that very broad Hero's Authority in other 

circumstances.

MS. JEFFRIES: Okay, thank you. One 

last comment and then we will be pivoting to the 
39

Negotiated Rulemaking - 12/08/21

presentation as parties are here for that.

MR. BARKOWITZ: Yes, that's me. So the 

one thing I will just say is we specifically my 

alternate, has proposed several times on alternative use 

and a way to get to what the Department wants and that 

is the SOC the occupation categories. There they go 

again, something outside. So I would again urge the 

Department to look at that as a future, if not in 

(inaudible) association, potentially moving forward. 

That gets us beyond the concern about type of employer 

or role 1099 versus W-2 employee.

MS. JEFFRIES: Thank you, Daniel. 

Jennifer.

MS. HONG: Also, thank you, Daniel. 

You are correct and you are the commodities editor at 

this point because AmericaCorp forbearance, it needs to 

be included in IDR, so we'll make that change and thank 

you for spotting it.

MS. JEFFRIES: Okay. Daniel, you had 

your hand up, is it still up or did you have something? 

Okay. We are at 11:01. It had been our plan to take 

consensus check on these two issues prior to moving to 

the prison education subcommittee presentation. The two 

issues that we would take consensus on are issue for in 

issue papers five. Can we go ahead and do those 
40

Negotiated Rulemaking - 12/08/21

consensus checks before we start the prison education 

presentation? Persis.

MS. YU: Thank you. I would like to 

request that we take the consensus check after. I'd like 

to go back to my constituency to consider and since we 

have we have the prison education lined up anyways, that 

would be my request.

MS. JEFFRIES: Okay. And that is, you 

know, my inclination to do because they do not want the 

committee to feel that we are trying to rush this in the 

consensus in because of that committee. So why don't we 

go ahead and have the committee present, we will, it is 

anticipated now at this point that committee's 

presentation will be shorter than anticipated, so we may 

have time for those questions and answers prior to the 

lunch break. And in either event, I would like to come 

back and take the consensus check on these two issues 

after lunch. Okay? Alright. So with that, let's go ahead 

and queue up for the Prison Education Program 

subcommittee presentation. I believe we have Belinda 

from the subcommittee. And who is the second presenter, 

is that going to be you Stan? Okay. So we will turn it 

over to Belinda and Stan.

DR. ANDRISSE: So, thank you. I 

believe we have a presentation that we would be going 
41

Negotiated Rulemaking - 12/08/21

through, and I'm not sure who will be sharing that if 

it's Aaron or someone else.

MS. MACK: What's your preference, 

Belinda and Stan? Either one of you have screen sharing 

capabilities, but I'm sure we can do it on our end as 

well, if that's what you'd prefer.

DR. ANDRISSE: Belinda, if you want to 

share, that's fine, but I would, you know, maybe if one 

of someone on the facilitation team shared.

MS. WHEELER: Yeah, I would appreciate 

that too, if that's possible. The short document, if the 

Department could please share that if you cannot, please 

let us know. But if you can make it available, that 

would be great.

MS. MACK: Aaron, do you have the 

shorter presentation at your fingertips to share your 

screen?

MR. WASHINGTON: Yes, let me pull it 

up now.

MS. MACK: Thank you very much.

MS. WHEELER: Thank you, and good 

morning, everyone.

DR. ANDRISSE: I guess, as we pull 

that up, one of the things that we were going to just 

mention in the opening and so we kind of get started is 
42

Negotiated Rulemaking - 12/08/21

just to thank the incredible work of the subcommittee 

and also to thank the Department of ED and, you know, 

working to put together a diverse group of constituents 

that that really dove deep into, you know, looking into 

the language and each constituency group kind of 

bringing their expertise to the table and picking apart, 

you know, parts particular to that constituency. And so 

in that we really feel we went through several revisions 

of the language and we are, feel strongly about where 

we've come to in terms of the language. I believe we are 

on version five of the language and that's something 

that we wanted to open up with is that we really 

appreciate the Department of ED, as well as the 

subcommittee members for the work that they did over the 

past couple of months.

MS. JEFFRIES: Okay. Just as a 

reminder, before we start this, we have asked the 

committee Belinda and Stan to withhold their questions 

until you complete your presentation and then we'll open 

it up to question and answer, period. Thank you.

MS. WHEELER: Excellent. Alright, 

well, thank you all again. We really appreciate this 

time to share the report out for the subcommittee. This 

is the shorter version of our report out for everyone. I 

also just wanted to reiterate everything that Stan just 
43

Negotiated Rulemaking - 12/08/21

said. We are very appreciative to the Department and the 

eight experts in their respective fields that kind of 

worked with us in the trenches the last couple of months 

to kind of, you know, put in guardrails that we believe 

protects students pursuing educational programing with 

Pell funds while incarcerated or post incarceration. And 

I just wanted to remind, you know, the main committee, 

but then also people that are, you know, watching, 

watching in today that students were certainly at the 

forefront of our minds at every step in the process.

DR. ANDRISSE: And I would also just, 

you know, just add to what Belinda mentioned is that, as 

you all know, through negotiations on the other topics, 

we move to a place of comfortability, and I think, you 

know, as we'll kind of present to you, I think we move 

to that place within the subcommittee. But naturally, 

you know, there's, you know, some sideways thumbs as we 

took temperature checks where, you know, folks, you 

know, it could have been more optimal for their 

particular constituency, but they were comfortable with 

where it was. So that's kind of how we'll move through 

and talk through the topics, as you know, offering those 

perspectives of how we got to what we know, the language 

that we moved to.

MS. WHEELER: Mm hmm. Excellent. Thank 
44

Negotiated Rulemaking - 12/08/21

you very much. Aaron, if you wouldn't mind going to the 

next slide, please.

DR. ANDRISSE: I'm not seeing it moved 

just yet. I don't know if I'm frozen.

MS. WHEELER: Yeah, no, I was just 

thinking the same thing too. Slide two please, Aaron.

DR. ANDRISSE: And if maybe if you 

could put it in presentation mode.

MR. WASHINGTON: Are you all seeing 

presentation mode?

DR. ANDRISSE: No, we are not.

MR. WASHINGTON: Let me try something.

MR. ROBERTS: So now we're seeing 

presenter mode, Aaron, I think you need to share if 

you've got two monitors, your other monitor.

DR. ANDRISSE: I mean, this is.

MS. WHEELER: This will work.

DR. ANDRISSE: This is okay. I mean, 

so we just, you know, oh okay.

MS. WHEELER: Oops, we lost it.

MS. GOMEZ: Aaron, do you just want me 

to share it? I have it up as well.

MR. WASHINGTON: Sorry. I just took 

the took the other screen out. Let me see if this will 

work. Oh, Vanessa is going to do it. Thank you, Vanessa.
45

Negotiated Rulemaking - 12/08/21

DR. ANDRISSE: Thank you. So just a 

quick overview, as Vanessa pulls this up, we hope to go 

through these five slides with you essentially where we 

just collectively show you the areas of consensus. So 

there was, I believe, 17 different parts to the 

language. And when we say consensus is, of course, a 

little bit different than what we're meaning temperature 

checks. But we went through the process similar to how 

the main committee is doing and temperature checking 

different parts. And so we temperature checked all 17 

different parts. And so we'll show you the parts that we 

reach consensus on those temperature checks, which was, 

I believe, 13. And then the areas where we didn't reach 

consensus, which I believe was 4. And that was at the 

end of our meeting on November 10th. But we in that 

meeting, as I mentioned, we're pushing for several 

revisions. And actually, by the time we got to the last 

day, we were already on revision four. But we made 

additional suggestions that were then sent back to us on 

another version was sent on 11/30 that had updated 

language that really addressed the four different areas 

that we had concern with. So then finally, we'll, you 

know, offer our recommendation to the committee and open 

it up to questions.

MS. WHEELER: Thank you. Yes, so just 
46

Negotiated Rulemaking - 12/08/21

briefly, I wanted to kind of highlight and make sure 

that it was documented both for the main committee and 

also for people listening in. You know that of those 17 

sections of the amendatory language that we were tasked 

with reviewing, there were indeed 13 areas where, you 

know, the subcommittee felt that, you know, the 

equivalent of, you know, the side thumb or the or the 

main thumb. But again, we weren't voting. These were 

indeed temperature checks. So while I do want to note 

that while we did indeed have consensus, it does not 

mean that, you know, there weren't some areas that you 

know, we would have wished for a little bit more, you 

know, clarity or information or things of that nature. 

But again, we do feel strongly that the Department 

really listened to, you know, our concerns and thoughts. 

So, you know, we're very happy to kind of share with you 

today that we do that we did indeed have those 13 areas 

that we felt were moving forward with those best 

interests of students in mind. Next slide, please, 

Vanessa.

DR. ANDRISSE: So, you know, just as 

mentioned and there were 4 sections that we did not 

reach consensus or temperature checks from the 

subcommittee. And so these are these are those sections 

that we were not in full consensus by the end of our 
47

Negotiated Rulemaking - 12/08/21

meetings on November 10th. And we would be happy to talk 

a little bit more about that in the Q&A portion.

MS. WHEELER: Next slide, please, 

Vanessa. Yep, so this part here, we really just wanted 

to kind of clarify how things kind of moved from those 4 

temperature checks that we did on 11, well the 10th of 

November to the language that we saw on the 30th of 

November. And again, just as we've documented here for 

the main committee and the general public listening in 

that, you know, the Department did indeed provide 

language to the subcommittee on the 30th of November. If 

anyone in the general public or main committee members, 

I believe you have this document to, anyone can see that 

version five of the document, which includes that new 

language that the Department had provided to us. And as 

we've pointed out here, most of that new language that 

the Department offered to us addresses many of the 

subcommittee language concerns that we had, particularly 

in the definitions, the eligible prison education 

programs and best interest determination. We did want to 

note for the main committee that although the Department 

did not provide any new language specifically for the 

.238 application requirements, much of the additional 

language that they provided for those earlier three 

sections definitions, eligibility and best interest 
48

Negotiated Rulemaking - 12/08/21

actually addressed that concern that we had identified 

with section .238. So, so we just wanted to make sure 

that that was clear to everyone. Thank you. Next slide 

please, Vanessa.

DR. ANDRISSE: And so regarding our 

recommendation to the committee, as I mentioned in the 

opening, this subcommittee strongly encourages the main 

committee to follow the lead of the subcommittee in 

terms of voting in favor of the proposed amendatory 

language. We feel that, you know, from November 10th to 

November 30th, we actually, you know, we actually asked 

the subcommittee if we can do kind of an email 

temperature check. And, you know, we our service in 

terms of being able to temperature check was over on the 

10th. So we were told that we couldn't do kind of an 

email temperature check. But we feel that it had we had 

the opportunity to do that. All of the issues were 

addressed that we had concern with, and we feel 

confident that we would have reached full consensus on 

this 11/30 version five of the amendatory language. And 

so that's why we strongly encouraged the committee here 

to vote in favor of what you see in front of you.

MS. WHEELER: And that's it. We were 

certainly open to questions. There's other, you know, 

yes, I'll just leave it there for questions from the 
49

Negotiated Rulemaking - 12/08/21

from the main committee and thank you all.

MS. JEFFRIES: And thank you, Belinda 

and Stan for the presentation. So let's see Daniel you 

have your hand up.

MR. BARKOWITZ: I do thank you both of 

you again for your work and to each of the members of 

the subcommittee. This this is very, very positive news. 

I'm thrilled to hear it, and I also recognize and want 

to acknowledge the Department's willingness to partner 

on this. So. And thank you for your leadership. Dr. 

Andrisse and Belinda. My constituency still has a 

concern about the additional location piece and namely 

counting as an additional location, as a site of 

incarceration where there is not a physical delivery of 

classes, but rather it's solely distance, which seems to 

be a lack of equality for a student who might be home 

educated where you know again, the college takes on 

certain responsibilities by listing that site as an 

additional location. And I don't see any distinction 

made in any of the language proposed so far that would 

alleviate the college or institution from all of the 

responsibilities associated with an additional location. 

So for that reason, I wonder, A, if there is there has 

been conversation about that in the subcommittee and if 

the Department is willing to add some language to 
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clarify that while this may be an additional location, 

by Department's definition, there are pieces that do not 

pertain because that present, I don't see any 

distinction of that. I'll name Clery as an example, 

Clery Reporting, but there are lots of other 

ramifications that come with an additional location. 

Sorry Stan.

DR. ANDRISSE: No worries.

MR. BARKOWITZ: Go ahead.

MR. BARKOWITZ: If I may. One, I 

think, you know, if the Department can step in on 

providing some clarification, but I do, I do recall that 

they mentioned that that certain requirements that, you 

know, financial aid reporting that the main campus or 

the entire campus is involved in, there are certain 

aspects that wouldn't be required within this additional 

location. And Belinda, maybe you can also clarify that, 

but I think we had we did talk about that within the 

subcommittee.

MS. JEFFRIES: Belinda, did you have 

an additional response on that?

MS. WHEELER: If I can, yeah, that 

would be great, and I also acknowledge that I believe it 

the Department is going to chime in and I do see my 

colleague Heather Perfetti, also with her hand up to me.
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Negotiated Rulemaking - 12/08/21

I want to make sure that as I speak now that I'm not 

speaking for accreditation.

MS. JEFFRIES: You have frozen up 

Belinda.

MS. WHEELER: The Department and the 

accreditation. Sorry?

MS. JEFFRIES: I said you had frozen 

up for a minute, so I want to repeat just a little bit 

of the last thing you said.

MS. WHEELER: Yes, ma'am. Sorry. So I 

just wanted to. Yes. So I'm very happy to speak. I do 

acknowledge that the Department and the accreditation 

agency representative is here on this call, so I 

definitely want to make sure that I'm not speaking for 

them in this space. With regards to the subcommittee,

one of the things that we really talked about with the 

additional location is making sure and Daniel to kind of 

get to your questions, we have seen both with Second 

Chance Pell sites Vera as providing technical assistance 

in this space and also for non Second Chance Pell sites. 

So they would be privately funded institutions that are 

doing this programing for students that currently there 

appears to be potentially at least nationally, so not 

really mentioning any specific kind of accreditation 

agency or things of that nature, but from the national 
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Negotiated Rulemaking - 12/08/21

perspective, right now, there is this up to 50% of 

programing kind of situation there. And we also 

acknowledge in the subcommittee that you know what is 

considered an online degree program for a traditional 

online student might indeed be quite different from an 

online program that someone is taking while they are 

incarcerated. For example, a student you know who a 

traditional online student is has the benefit of being 

able to pick up the phone and talk to someone at any 

time. They're able to kind of go on to a main campus, 

you know, talk with, so, so things are quite different 

in that space, even if we're not talking about the face 

to face, but the online. So the subcommittee kind of 

noted that we really feel that, you know, an additional 

location devoted to different modalities is important 

when we're trying to consider the best interests of 

students. Also, you'll see that on the under the section 

under best interests of students as well. There's a lot 

of additional things these guardrails that Stan and I 

kind of connoted to as we were speaking earlier about 

different additional kind of expectations that we're 

having for these educational sites that are moving into 

this space, this kind of wraparound services and other 

things. And I know that when we were looking at Second 

Chance Pell sites where, you know, previously when I 
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wasn't at Vera, I was a director of a postsecondary 

education and prison program myself. There wasn't a lot 

of expectation during the experiment for a lot of these 

kind of wraparound services and things of that nature in 

this document that we've now created, you know, we 

realize, you know, we've got the experts in the room 

kind of explaining that we need more done there. So 

based on what the committee had said and what we had 

looked at and spoken about, we did really feel that the 

additional location is important for everyone 

regardless, speaking of a student, regardless of their 

location. So I'll stop there and turn it over to the to 

the main people. Thank you.

MS. JEFFRIES: Okay, thank you, 

Belinda. Before we move on to the next speaker, I do 

want to note that Ms. Jennifer Cardenas has come to the 

table for student borrowers. Okay. So hand wise, I see 

Heather is up next.

DR. PERFETTI: Thank you, Cindy, and 

thank you, Belinda and Stan and the entire subcommittee 

for your work. I certainly have appreciated the 

opportunities to engage specifically with Belinda as she 

supported the work of that subcommittee and to think 

through some of the issues from an accrediting agency 

perspective, and our engagement started long before 
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negotiated rulemaking when she had outreach to our 

agency. So much appreciation for that, certainly. So 

while following up on the topic that Daniel presented 

about additional location, I also had a question about 

the site visit and the number of site visits. And if you 

could talk about if the committee explored the purpose 

of those visits so that I have a better understanding of 

how those align with the visits we currently do for 

additional locations or branch campuses.

MS. WHEELER: Certainly thank you so 

much for that, Heather. Yes, I do think now again, we 

didn't get too much into the weeds on the accreditation 

side of things because no one in the subcommittee 

specifically was an accreditation expert. However, I 

will note that the Department did have their 

accreditation team on the call as well. So when we 

really started to get somewhat into accreditation, we 

did have the Department's accreditation people on there. 

And you're right, there is with the language right now, 

there is this expectation that site visits will happen 

within a certain period. Now again, not speaking for the 

Department, but just for the subcommittee. I think that 

there will certainly and I welcome the Department kind 

of chiming in here, Aaron or others, I do believe that 

for an existing prison education program, say, for 
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example, they just did their site visit or say in 2020, 

do they do their traditional site visit with middle 

states or another accreditation agency for their prison 

education program, I think the Department will still be, 

you know, needing to look at do they then need that very 

next year to then turn around and do you know another 

site visit per say. I think the Department has been 

really good with this language that we have so far to 

not be overly prescriptive, you know, with what the 

subcommittee is saying, I would hope that, you know, 

after neg reg is ended and whatever language that the 

Department determines will be used as we move forward to 

July of 2023, that they will be having additional 

conversations with accreditation agencies and things of 

that nature, but just from the conversations that we 

had, well, and at least speaking for myself as we were 

in this process, I really felt like that what that site 

visit would look like is very similar to, you know, not 

only what has been taking place traditionally with a 

site visit that happens to be in a carceral space. But 

then, of course, making sure that if those site visits 

occur after the July of 2023, that the accreditation 

agency and others are taking into account those points 

that were listed under the best interests of students 

and things like that. So let me stop there and, you 
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know, check in with the Department if they, you know, 

had anything else that they wanted to say with that. 

Thank you.

MS. JEFFRIES: Okay. But Aaron, before 

you begin, I just want to make one note that Dr. 

Christina Tangalakis has now come to the table for the 

two-year public institutions of higher education. So in 

terms of sequence here, Daniel had his hand up next. 

Aaron, I'm not sure, is your response to.

MR. BARKOWITZ: I can defer to Aaron.

MS. JEFFRIES: Okay, thank you, 

Daniel. Okay, Aaron.

MR. WASHINGTON: Yeah, it looks like 

we're going to be getting a lot of questions. So I just 

wanted to respond to Daniels and Heather's now. So in 

regards to the additional location and addition to what 

Belinda said, Daniel, we want to ensure that we are 

getting the proper reporting from institutions. And if 

you see under 600, if you look under 600.21, I think, 

well, once we get to that part, Vanessa will share her 

screen. She doesn't have to do it yet, but we do say 

that the institution will be required to report its 

establishment of eligible prison education program in a 

different location. And so for that purpose, for the 

purposes of reporting, for the purposes of data 
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collection, we do need those additional locations at any 

prison education prison education program offered at a 

correctional facility reported to Department as an 

additional location. I did speak at the second 

subcommittee, I believe, about the Clery specifically 

about Clery, and I did mention that the Department has 

determined that institutions would not be subject to 

Clery Reporting. Well, will not be subject to Clery 

Reporting for the additional location at the 

correctional facility. I can take that back to discuss 

whether we would want to incorporate that into the 

regulatory text or just describe that in some form other 

form of subregulatory guidance. I, I, you know, I stated 

that on the record I, you know, but if you if you want 

to see something in the actual regulation regarding an 

exemption from Clery Reporting for those additional 

locations at correctional facilities, that is a 

recommendation that you of course can make and we can 

take that back and discuss it more. Also, another thing 

another issue with reporting it as an additional 

location is if we talked about Pell restoration for if 

an institution completely closes or ceases operation at 

a at a correctional facility, students may be eligible 

for the restoration of their or their Pell grants. And 

so for those reasons, we are comfortable with the 
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position of maintaining the language of reporting about 

correctional facilities that are just locations. To 

Heather's point about the site visit, it's really about 

educational quality and ensuring quality there. These 

are a prison education programs as they as we start to 

as they start to ramp up, we really just want to be sure 

that there's a quality there and we think that through a 

site visit we can more and more better ensure quality. 

We, I don't have specifics and I don't want to get ahead 

of the accreditation group and what they will provide to 

postsecondary institutions for these site visits, but I 

am sure that there will be guidance that followed up 

with the regulation. Most of our regulations in general 

are always followed with some form of subregulatory 

guidance to explain things. Regulations are super high 

level overview of the framework for which the Department 

intends to enforce statute and we would be providing 

guidance to accreditors. And of course, you know, we 

have an accreditation team in which an agency can reach 

out to if there was ever a need for more guidance on 

anything in the regulation.

MS. JEFFRIES: Thank you, Aaron. 

Daniel.

MR. BARKOWITZ: Thank you, Aaron, for 

putting words in my mouth. So yes, I would actually 
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request some clarity of that be added to the regulation. 

I think that's really important. I guess I would also 

ask, are there other aspects of location definition that 

the Department is thinking of waiving or not holding 

responsible for institutions who choose to offer these 

programs. I do think that the requirement to list this 

as an additional location, especially if the program is 

being offered in a distance mode, will be a disincentive 

for institutions to step forward to offer this program. 

I just, you know, I want to state that for the record, 

it makes sure the Department understands that. You know, 

the additional location piece, and I completely support 

and acknowledge the Pell forgiveness issue if the 

program closes. I also think we're back to close school 

conversations. You know, I would want that student to 

have, well, there'll be no loans, but you know, 

presumably if there were loans in the future, that 

possibility. So I guess my question is, are there are 

there any other aspects of location reporting other than 

Clery that the Department is determining don't apply? 

And if not, then can we just state the Clery carve out? 

That will go a long way to resolving my concerns with 

this area.

MS. JEFFRIES: Okay.

MR. WASHINGTON: Can I respond to 
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that, Cindy?

MS. JEFFRIES: Sure.

MR. WASHINGTON: Belinda or Stan, 

either you want to respond or are you comfortable with 

me responding? We did not discuss any other carve outs 

in regard to what institutions will be held to in 

reporting their additional locations to the Department. 

The one that I've heard is-- Daniel is quite frankly 

from you, the Clery reporting, and I think I've stated 

now again that you wouldn't be subject to Clery 

reporting. So I can take that back. If you have, if you 

can think of while we are while we are in the question 

and answer period, if you can think of any other 

suggestions, I can of course, take those back. But so 

far I have a list. I've written it down and your 

proposal to add Clery Reporting an exemption from Clery 

Reporting for additional locations at correctional 

facilities to the regulation.

MS. JEFFRIES: Thank you, Aaron. 

Heather.

DR. PERFETTI: Thank you. So I believe 

then what I'm hearing from the subcommittee is it was an 

intentional decision to treat prisons that are 

additional locations differently than other kinds of 

additional locations. Since there will be additional 
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requirements around the additional locations. That our 

prisons. I think that's what I heard, and someone can 

correct me if I am wrong. I do want to just shift to the 

concept of completion rates and the waivers that have 

been included in the proposed regulatory language. And I 

was looking for a definition around completion rates and 

whether alternatives to completion rate was considered 

by the subcommittee in particular with regard to the to 

some of the waiver provisions.

MS. JEFFRIES: Belinda, did you want 

to respond to that?

MS. WHEELER: Yes, thank you very 

much. I am going to default to the Department, first of 

all, for the completion rate discussion, but I did want 

to answer Heather's good question about the additional 

location additional location. So just for clarity, and I 

hope I'm not muddying the waters here, I'm hoping I am 

being very clear, right now, there's a lot of programs 

that are working within this up to 50% of a program, and 

we have noticed that there are several programs where 

there's actually currently no chance of students 

actually getting their credential because several 

institutions are currently offering the same classes 

every year, with no other chance of students kind of 

finishing. So, for example, some programs offer quite a 
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few gen ed courses, and then that's it. They kind of 

close the door on students completing going any further 

to actually getting their credential in the following 

semester, they're offering the exact same classes again. 

So of course, those existing students that were in year 

one can't do classes in year two because again, it's the 

exactly the same exactly the same classes being offered. 

So right now, you know, with the with the experiment or 

just general prison education programing, right now, 

we're seeing quite a bit of potential harm to students 

in the sense that not everyone is kind of making sure 

that they're acting in those best interests of students. 

So, so we're making sure that that requirement of 

additional location be noted. As Aaron pointed out, for 

things you know for like if a program closes or things 

of that nature. Also, the teach out plans, you know, 

which are mandatory. There's a number of programs that 

whether they're Second Chance Pell or not Second Chance 

Pell right now that are currently thinking of actually 

closing their program for whatever reason and because 

they weren't mandated, like because they didn't hit that 

50% of programing being offered to students, they opted 

not to do the additional location. So those educational 

institutions that are considering leaving right now, 

there's potential damage, harm being done to those 
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students because there wasn't that mandated teach out 

plan. So I hope I'm kind of clarifying there a little 

bit Heather. I just wanted to make sure so we're not 

necessarily expecting anything more in the sense of an 

additional location. We just want to make sure that 

prison education programs that do indeed want to 

practice in a carceral space, whether it's face to face, 

whether it's hybrid, whether it's online, that they are 

being noted as additional locations early in the process 

so that students best interests are served. Because 

right now, you know, we've seen, you know, there are 

some programs, even with Second Chance Pell that might 

have been in that first round of Second Chance Pell and 

they've been active for, you know, five or six years, 

approximately, and they still haven't yet hit that 50%. 

You know, we're hoping that, you know, those 

institutions are doing great things and the students are 

100% happy and everything is going well, but because 

they haven't hit that mandate to do that additional 

location, there's just some concerns. So I think the 

subcommittee kind of talked about this and was like, I 

think for everyone, you know, by having that additional 

location kind of being, you know, enforced early on in 

the process, we're just making sure that that level of 

quality, that accreditation and others, you know, are 
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really made available to everyone so that those students 

interests are met. So let me stop there and see if you 

had a follow up Heather and then the Department, I 

wanted to make sure that, you know, Aaron from the 

Department, had a chance to talk about those completion 

rates. Thank you.

DR. PERFETTI: Thanks, Belinda. I'll 

defer to Aaron so he can speak to the completion rates, 

and I know David has his hand up to.

MS. JEFFRIES: So, Aaron, you want to 

go ahead and respond to that? And then David you will be 

next in the queue.

MR. WASHINGTON: Can you repeat your 

question on completion rates? I'm sorry.

DR. PERFETTI: Sure. So my question 

is, where is completion rates defined and did the 

subcommittee talk about any alternatives other than 

completion rates, particularly as it pertains to the 

waiver provisions?

MR. WASHINGTON: Oh, so the waiver in 

600.7 for exceeding 25% enrolling incarcerated students 

or are you talking about completion rates for the best 

interest, well, the Bureau of Prisons Department of 

Corrections determining whether a program is the best 

interest of a student or not?
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DR. PERFETTI: So I guess my question 

is, are those different completion rate definitions in 

each of those provisions or is there a definition 

somewhere of completion rates?

MR. WASHINGTON: Well, we say in the 

regulation, well, okay, so in 600.7, we do, there is a 

provision in there for completion rates. If in order for 

you to exceed 25% enrollment on incarcerated students, 

if you are a school that offers something other than a 

two or four year program, you have to have a 50% 

completion rate in those programs. And that is defined, 

the calculation is already been defined in regulation, 

and we're not going to amend that. So that that is 

there. In the in the best interest piece, we have added 

a completion rate indicator. The completion rate 

indicator is not in statute and we haven't defined what 

that completion rate is, but we do say the oversight 

entity will establish that. So whether the rates of 

completion reported by the Department of Education, so 

the Department is going to report that data meets 

thresholds set by the oversight entity and oversight 

entity would be the Bureau of Prisons or State 

Department of Corrections or, you know, whoever has 

oversight over that agency. And then they would have to 

get that input on how to determine the bench the 
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threshold from the relevant stakeholders, which would be 

like formerly incarcerated students or groups that 

represent them. So the threshold is set by the Bureau of 

Prisons, the Department of Corrections and the 

accrediting agency is actually responsible for reviewing 

is not responsible for reviewing the methodology behind 

the completion rate, it's responsible for reviewing the 

methodology behind that input indicators like teacher, 

teacher turnover, academic services and transfer the 

transfer credit policy. So is there a concern from the 

accrediting constituency about the completion rate? Or?

DR. PERFETTI: I guess I would reserve 

my response on a concern until I have an opportunity to 

follow up with a constituency group. I do know that 

institutional presidents have voiced concern about the 

completion rate. I do wonder, Aaron, if you could 

provide me with the statutory citation for completion 

rate so that that can be a part of what the constituency 

group can reference.

MR. WASHINGTON: So, so completion 

doesn't appear, so completion rate in regards to the 

best interest does not appear in the statute. That is an 

indicator that the Department of Education has proposed 

to include in the best interest determination. And the 

reason that we have proposed to include that is because 
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Negotiated Rulemaking - 12/08/21

we want to assess whether a prison education program is 

supporting a student through graduation. So there is no 

statutory reference, at least in the prison education 

program authorizing statute that speaks to completion 

rate. That is something that the Department is proposing 

to add that the Bureau of Prisons Department of 

Corrections assess.

DR. PERFETTI: So I just want to 

clarify, because I thought Aaron, you said, that under 

600.7, that the definition of completion rate was 

defined somewhere else. So that's.

MR. WASHINGTON: Yeah, so that so that 

there are two separate completion rates. So there's a 

completion rate for so there's so that there's I'm 

talking about, in 600.7, in 34 CFR 600.7, we're talking 

about the 25% the statute the statute says that no more 

than 25% of your enrolled students can be incarcerated. 

And it says unless approved by unless there's a process 

approved by the Secretary through regulation. Some years 

ago, I don't know the exact year, the Department chose 

to regulate on the process for through which a 

postsecondary institution could exceed 25% enrollment of 

incarcerated students. And in that, they said, and in 

those regulations, we said that if you want to exceed 

25%, if you are a two or four year program, the waiver 
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was essentially pre these regulations automatic if you 

have only two or four year programs. If you have 

something other than two or four year programs, those 

programs would have to have a completion rate of at 

least 50%. So that is totally that is that is separate, 

that that completion rate is separate from the 

completion rate we're talking about for the best 

interest indicator. The completion rate we're talking 

about the best interest for the best interest indicator, 

the threshold is set by the oversight entity, the Bureau 

of Prisons, the State Department of Corrections. What I 

can do is I can send you what I will do is I will try 

and I will send you the 600.7 language on how the 

completion rate is calculated there. But again, that is 

separate from the best interest completion rate. Which 

will be different it will be different. And it'll be 

determined by the Bureau of Prisons, State Department 

Corrections in collaboration with the relevant 

stakeholders.

MS. JEFFRIES: Okay. Thank you for 

that. Go ahead.

DR. ANDRISSE: So the, you know, I was 

just going to add the, you know, the exact location and 

just clarify that 600.7 and then if you are, go to the 

number three, roman numeral two is where that's defined, 
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Negotiated Rulemaking - 12/08/21

and if you were looking for the exact location of the 

25% waiver completion. So, if that helps just for the 

location of where it is. And then the other one, was in 

the best interest section, which is defining what a 

program defining a completion rate that would determine 

a best interest is the program working in the best 

interests of the student. So one is, one completion rate 

is, if a program wishes to expand beyond 25% and the 

other one is, you know, to determine if it is working in 

the best interest of the student. And then the one has a 

definite number 50% and then the other one in the best 

interest can be determined by a group of stakeholder 

experts and the Department of Corrections or BOP. Bureau 

of Prisons.

MS. JEFFRIES: Thank you, Stan. Thank 

you, David, for patiently waiting. You are up in the 

queue.

DR. TANDBERG: I'm just wondering if 

Heather you had a quick follow up on that that you want 

to get a handle on. I'm going to be in the same topic 

area, but at different vantage points. I don't know if 

you want to finish this conversation Heather first.

DR. PERFETTI: I think it will be 

helpful once Aaron sends the additional pieces, and I 

appreciate that explanation Stan. I did see under the 
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best interest of the student area, seemingly the 

exclusion of students who are transferred and students 

who may be part time from the calculation of completion 

rate. And I was not sure if that carried in the earlier 

provision as well and whether completion was talked 

about more holistically than the traditional concept of 

a completion rate for this student population.

MR. WASHINGTON: Cindy, can I happen 

there really quick? I'm sorry.

MS. JEFFRIES: Sure.

MR. WASHINGTON: So, I think Stan 

actually gave the regulatory site for the completion 

rate calculation for under 600.7, but just to just to 

restate it because I don't necessarily I don't have 

access to my email right now. It is 600.7 E little E 

number two and that's the that's how the completion rate 

has been defined under the 25% waiver. But as Stan said, 

that is different from the best interest completion 

rate.

MS. JEFFRIES: Okay. Thank you. Okay, 

David. I'm sorry, David, I know you've been very 

patient. I do need to announce that Jeri is back at the 

table for student borrowers. Okay. Go ahead, David.

DR. TANDBERG: So speaking with my 

constituency, that the sense is that there's a high 
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Negotiated Rulemaking - 12/08/21

degree of satisfaction with the quality assurance 

provisions within the proposed regulatory changes and 

the guardrails that have been put up. An equal concern 

with my constituency is broadening access and 

participation. And they've struggled with that within 

their states. And there's some confusion, I think, 

around that 25% provision and that confusion has existed 

for a long time. A lack of understanding of why 25%, it 

seems rather arbitrary. The waiver process being nearly 

automatic but why does if it's nearly automatic, why 

does this provision exist at all? They're particularly 

concerned when it comes to smaller institutions that are 

providing critical access to prison education in 

different areas, particularly remote areas where the 

institutions regular enrollments fluctuate quite a bit 

and their prison enrollments fluctuate quite a bit. They 

can easily bounce around that 25% and often want to go 

well above it. And I think if they're meeting the 

quality standards and are operating within the 

guardrails, we really want that, we want more access, we 

want more participation in high quality programs. One 

proposal would be to bump it up to 50% and adjust the 

waiver process accordingly. And so that that's a real 

concern as we've seen state after states struggle with 

providing widespread access to high-quality prison 
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education, particularly from our public and nonprofit 

institutions, many of which would love to broaden their 

prison education programs.

MS. JEFFRIES: Thank you, David. Anne.

MS. PRECYTHE: Thank you.

DR. TANDBERG: Real quick. I would 

have liked a response on mine.

MS. JEFFRIES: Aaron, are you prepared 

to respond to that? And now Stan has his up too.

MR. WASHINGTON: David, just to 

response, section 102 of the Higher Education Act states 

that a student has a student enrollment in which more 

than 25% of the students are incarcerated. So 

essentially, section 102 is defining what an institution 

of higher education is and it says an institution shall 

not be considered to meet the definition of an 

institution of higher education if it has an enrollment 

student enrollment in which more than 25% of the 

students are incarcerated, except that the Secretary may 

waive the limitation contained in this subpart for 

nonprofit institutions that provide two or four year 

program of instruction or for its institutions or as a 

bachelor's degree or associate's degree or postsecondary 

diploma. And so it's a statutory requirement. The 25% 

threshold is statutory requirement.
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MS. JEFFRIES: Thank you, Aaron. Stan, 

did you have something to add to that for David's 

question or something different?

DR. ANDRISSE: I'm a little bit just 

to add, I mean, I think partly an idea behind putting a 

number is, and Belinda, maybe you were going to jump in 

and kind of say the same thing is, you know to think 

about institutions that may be coming in and not serving 

the best interests of students and, you know, solely, 

you know, you know, as Belinda kind of mentioned, 

certain institutions not even having any intentions of 

moving people towards degrees and just getting as many 

people to offer take courses that are not leading 

towards any type of credential. And you know, the fear 

of having an institution that is 75, 100%, you know, 

just doing that and moves into this space just to do 

that. But to your point, you know, it also, you know, so 

there's always that balance. There, it does, you know, 

impinge upon the good actors that are, you know, truly 

trying to move into that space. But I think there's in 

that waiver process, there's room for those good actors 

to still do what they were intending to do and have a 

guardrail against, you know, quote unquote bad actors.

MS. JEFFRIES: Thank you, Stan. 

Belinda, did you have something additional?
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MS. WHEELER: Yes, ma'am, thank you 

very much. Yes. I just wanted to thank Stan for his 

comments and also Aaron for a noting that statutory 

language. David, I just wanted to mention to my friend 

that in the in the language that we have here, there is 

opportunities for institutions such as the ones that you 

have referred to. You know, if they want to apply to go 

above that 25%, there's areas where they can, you know, 

ask the Department if they can move up to the 50% and 

there's that probationary period where they, if the 

Department approves, gives them the opportunity to move 

up to that 50%. And the Department also has in this 

language that the subcommittee, you know, was grateful 

for, even going up to that 75% is possible. So I think 

that there's good opportunities for excellent actors in 

this space to move forward and scaffold their 

programing. So again, that that quality is really 

enhanced and I think the Department is very, is 

definitely, and again, I'm not speaking for the 

Department, but you know, the subcommittee feels that, 

you know, the Department is really putting some good 

kind of guardrails in there so that at every step of an 

educational institution expanding that programing for 

their students, that you know, that they're they've got 

a friend as they move, you know that they move forward. 
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So I hope that kind of helps with those, you know, 

again, they can move from 25, they can potentially go up 

to 50 and they can potentially go up to 75. Thank you.

MS. JEFFRIES: Okay. Thank you. 

Heather. I'm sorry, Belinda. Anne is now next.

MS. PRECYTHE: Thank you. So the first 

thing I want to say is just over the last couple of 

days, I've developed an immense amount of respect for 

this group. You all are incredible subject matter 

experts, and it's very tedious work that you're doing. 

So thank you so much. It's also exciting to hear you be 

so interested in the correctional environment and a part 

of what we as correctional leaders are trying to do, 

which is improve outcomes for our individuals that are 

incarcerated. So the Correctional Leaders Association 

was on the hill and we were part of helping to lift the 

ban on the Pell grants a couple of years ago. So my 

colleagues and I are very committed to expanding higher 

education opportunities for the incarcerated. I really 

appreciated Heather and David's points because the 

completion rate I just I just want this group to be 

mindful of how complicated it is to define a completion 

rate. And Heather you asked the question, you know, it 

would almost be worth looking at course completion 

rather than overall completion or even the time frame 
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that people are required because being in prison is very 

difficult and it's beyond the institution's control as 

well as the incarcerated individuals control. A prime 

example, if someone is also required to complete 

treatment and they were able to enroll in education 

first, then the treatment spot became available, that 

now becomes the priority. And when we transfer those 

individuals, the same educational opportunity might not 

be available. So it delays the process and it doesn't 

mean they can't come back to it. It's just they need to 

focus on the treatment because oftentimes the regimen of 

treatment and education are too much for an individual 

in an incarcerated setting to comply with both at the 

same time. So there are numerous other things that 

impede the educational process on the schedule that the 

individual may have sought to start. But I just wanted 

to bring that up to let this group know that A, it's not 

always the institution's fault, nor is it the 

incarcerated individual's fault that they weren't able 

to stick to or maybe meet that completion rate. And then 

David with respect to what you said, we are definitely 

interested in expanding, but the Department's appreciate 

the flexibility to be able to the Department of 

Corrections appreciate the flexibility to be able to 

help determine who are really the best actors to come in 
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and is the methodology the best for us? Is it online? Is 

it in class or is it a combination? What is it that they 

need to do to serve as many as we can? Staffing plays a 

part in that as well, so this is just an excellent 

opportunity for me to come back to my colleagues to 

really express the interest that this group has shown 

for helping us to expand. So thank you for that and I 

appreciate the additional conversation.

MS. JEFFRIES: Thank you, Anne, 

appreciate your comments. Heather, your hand is up, do 

have some more to add?

DR. PERFETTI: I do, thank you. Thank 

you, Anne. Your addition to this committee, I think, has 

proven to be quite valuable as part of the process, and 

I know on behalf of the whole committee, we appreciate 

you spending time with us. I did just want to note in 

response that completion rate will be an important 

consideration and whether student academic progress may 

be a better barometer of success for this particular 

student population. And so there may be alternatives 

worth exploring. I know some of that may already be 

reflected elsewhere or is required by statute, and so 

I'd like to spend some time looking at those. I did want 

to ask about the institutions that have been providing 

prison education programs for decades. Are there 
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provisions for grandfathering them into this regulation, 

in particular when it goes into effect and if they've 

had waivers in place, will those waivers continue or are 

they going to be starting from scratch under this 

regulation?

MS. JEFFRIES: Okay. Stan, did you 

have a response or Aaron?

DR. ANDRISSE: If Aaron wants to go, 

I'll defer to Aaron.

MR. WASHINGTON: Stan, you could go if 

you.

DR. ANDRISSE: Mine was rather quick, 

and that just the distinction between those that have 

been around for decades, as you mentioned, many of them 

have been relying on philanthropic dollars, so they 

actually have not been necessarily accessing Pell. So in 

that regard, they would just be they would be new to 

entering into this space in regards to the few programs 

that have been going on for decades. You know, that have 

been supported even before Second Chance Pell, it was it 

was philanthropic or the university scholars or 

institution scholars.

MS. JEFFRIES: Thank you, Stan. Aaron, 

we just as a reminder, we are about one minute away from 

the lunch break. So go ahead and give your response, if 
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you will.

MR. WASHINGTON: Oh, okay. 

Institutions that already have the waiver, we posted the 

document on our website, listing all the institutions 

that already have the waiver to go beyond the 25% of 

incarcerated population. Those institutions are 

grandfathered in. They will be allowed to keep their 

waiver. However, on July 1st, 2023, all institutions 

will be required to comply with the whatever final 

whatever the final regulations will end up being, 

including, like our previous discussion reporting, you 

know, additional locations to the Department. And also 

Heather, under 668.242, we do have some information of 

some regulation, not information but regulation, about 

the transition from a prison education program, a 

transition to a prison education program for 

institutions that are at facilities other than federal 

or state correctional facilities that are currently 

offering eligible programs.

MS. JEFFRIES: Okay, thank you. So 

with that, we are at the lunch break period. I would 

like to outline our intent for this afternoon's agenda. 

It would be our intention to come back from lunch and 

address finish addressing this prison education program 

Pell grant issue, including consensus check, then moving 
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on to PSLF with a consensus check and then into IDR. So 

it would be an expectation, we just want to let you know 

that because we do plan it is our intent to be able to 

conduct these consensus checks that the committee 

members be prepared to for. Just wanted to give you a 

heads up. Stan.

DR. ANDRISSE: Real quick. Did Daniel 

want to possibly send language to Aaron in terms of that 

piece, if that was going to be something that you feel 

should be included? It sounds like, if that could be 

done over lunch, that might be.

MR. BARKOWITZ: I'm happy to do that, 

if that would be helpful? Jennifer, Aaron, I'm not sure 

if what the Department's willingness is, but.

MS. JEFFRIES: I think, Aaron you 

invited that, so if Daniel sends that to you, can you 

address that over the lunch period?

MR. WASHINGTON: Sure. And I got 

further clarification as well, so.

MS. JEFFRIES: Okay, great. So with 

the piece of it, we would be asking the Department to 

pull up the document that and share that that we will be 

the committee will be taking consensus on and make any 

comments to that. So with that, please have a great 

lunch and we will see you at 1:00 p.m.. Thank you.
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Appendix

Department of Education

Office of Postsecondary Education

Zoom Chat Transcript

Affordability and Student Loans Committee

Session 3, Day 3, Morning, December 8, 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 Michaela Martin to Everyone:

10/10 not in support of that

From Jaye (P) FFEL Agencies to Everyone:

Will from FFEL Agencies may be late.

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

In my family, we celebrate "Thankschrismukah"

From Kevin-FMCS Support to Everyone:

That's awesome Daniel

From Jessica Barry, Proprietary (P) to Everyone:

Carol will sub in for me this morning.

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

Dr. McTier will be primary for the prison education 

discussion today.
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From Heather-PSLF Advisor to Everyone:

For Direct Loans too

From Heather-PSLF Advisor to Everyone:

According to data published by ED, the most common 

reasons for ineligibility were:

1. insufficient qualifying payments, 

2. missing information, and 

3. ineligible loans.

From Justin (P) Servicemembers and Veterans to Everyone:

+1 Joe on ED plans for noticing borrowers on wrong 

loan for PSLF

From Joe (P) State AGs to Everyone:

What steps does the Dept. plan to take to let 

borrowers know that they are in the wrong loan type?

From Joe (P) State AGs to Everyone:

for FFEL borrowers

From Joe (P) State AGs to Everyone:

borrowers

From Michaela [P] Ind. Students to Everyone:

It got sent :)

From Kayla, FMCS Facilitator to Everyone:

The documents have been emailed to everyone.

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

+1 to the report + Daniel's comments

From Bethany (P) - Disability (she/hers) to Everyone:
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Negotiated Rulemaking - 12/08/21

re: the care economy

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

Everyone:

+1 Daniel inclusive

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

+1

From Suzanne Martindale (A) state regulators to 

Everyone:

+1 Daniel - tax status of employer is a poor proxy for 

scoping who's in public service or not

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

+1 on the 1099 form

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

Everyone:

+1 on 1099

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

+1 on 1099 (Heather)

From Alyssa (A) Fin Aid Administrators to Everyone:

+1 billion to Bethany

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

+10000000% bethany

From Suzanne Martindale (A) state regulators to 

Everyone:

+1!!

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

+1 Bethany!!
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From Jeri (P) Student Borrowers (she her, they) to 

Everyone:

100%!!!! Bethany!!!!

From Dixie (P) Dependent Students to Everyone:

+1 Bethany!!!!

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

Agree, Bethany

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

Josh suggests that the word I was looking for was 

bamboozled.

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

Everyone:

+1 bamboozled

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

+1 to Persis on counting of payments

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

+1 Joe!

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

Everyone:

+1 Joe!!!

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

+1 Joe

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

+1 Joe

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

+1 on Joe
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From Michaela [P] Ind. Students to Everyone:

Good work mate

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

+1 on Daniel

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

Good catch Daniel

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

re: AmeriCorps

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

Everyone:

+1 Daniel

From Heather-PSLF Advisor to Everyone:

+++

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

+1 Joe

From Dixie (P) Dependent Students to Everyone:

+1 Joe

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

josh is joining for legal aid

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

+1

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

Everyone:

+1 Justin

From Persis (P) - Legal Aid (she/her) to Everyone:
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Negotiated Rulemaking - 12/08/21

I am returning to the table

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

Everyone:

Jen will be coming in for Jeri

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

Could a separate category be created on the ECAR for 

location vs facility?

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

Perhaps the ECAR could list facilities for PEPs rather 

than locations?

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

Christina is going to step in for 2 year

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

I’m at the table now

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

Everyone:

Jeri is back - thanks Jen!

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

John Whitelaw will be absent for most of the afternoon

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

Didn't realize it was statutory. I appreciate the 

clarification.

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

+1

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

Everyone:
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Negotiated Rulemaking - 12/08/21

Thank you for joining us Anne