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May 9, 2013

U.S. Department of Education’s Responses to National Consumer Law Center’s 60-Day 

Comments on Discharge Application: Total and Permanent Disability, Total and Permanent 

Disability: Applicant Representative Designation, and Total and Permanent Disability: PostDischarge Monitoring (78 FR. 14083)

Discharge Application: Total and Permanent Disability

1. Use of Social Security Administrative Notice for TPD Determination

We applaud the Department’s decision to use SSA notices for TPD Determinations. However, the 

current language on the form regarding use of SSA notices is unclear. In several places, the form 

states that SSA determination will be used if: “the Notice of Award states that your next 

scheduled disability review will be within 5 to 7 years...” However, few borrowers apply for 

discharge of their student loans immediately after receiving a SSA determination. In our 

experience, many borrowers receive SSI or SSDI payments for several years before applying for a 

TPD discharge on their student loans. Therefore, a borrower’s next review may be in less than 5 

years even though they are in the medical improvement not expected category and have a 

continuing disability review period of 5 to 7 years or more.

To that end, we recommend that this language be amended to read:

“your disability review period is 5 to 7 years or more from the date of your last disability 

determination...”

Response:

We have added the recommended language with one minor change:

“...5 to 7 years or more from the date of your last SSA disability determination...”

Additionally, the application currently requires that borrowers submit a Notice of Award to demonstrate 

their disability review period. However, in our experience, SSA Notices of Awards do not consistently 

provide recipients with the disability review period. Therefore, we urge the Department to explore other 

possible documents for borrowers to provide to the Department to prove their disability review period 

and to list those documents on the application form.

Finally, it is critical that borrowers get information about how to determine if they are in the 

eligible SSA category. As already mentioned, the Notice of Award often does not state the 

disability review period, therefore many recipients do not know when their next medical

review will take place. At a minimum, the “Read This First” section of the application should 

include information about how borrowers can get this information.

Response:

We have added language to the form explaining that if the SSA notice of award does not 

clearly show the timeframe for the next scheduled disability review, applicants may contact 

the SSA office that issued the award and request a Benefits Planning Query (BPQY) that will 

include the necessary information and that may be submitted as evidence that the 

applicant meets the required standard to qualify for discharge based on SSA 

documentation.

2. “Read This First”

In order to streamline this section, we recommend that the form combine the fourth and 
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seventh bullets. Their content is substantively similar and therefore redundant as two 

separate parts.

Response:

We agree and have combined these two bullets.

Also, the “Read This First” section must contain some mention of the post-discharge monitoring 

process. Although the application does include information regarding this process on page 6, 

this is an important process that borrowers should be aware of and may overlook if not placed 

in the “Read This First” section. To that end, we recommend adding the following language:

• “If you are granted a discharge, the Department will monitor your status for a 3-

year post- discharge monitoring period. Your loans may be reinstated if you no 

longer meet the requirements listed on page 6.”

Response:

We have added the following new bullet to the “Read This First” Section:

“If you are granted a discharge based on requirement #2 or requirement #3, we 

will monitor your status during a 3-year post-discharge monitoring period. Your 

discharged loans or TEACH Grant service obligation may be reinstated if you do 

not meet certain requirements during this period, as explained in Section 6 of this 

form.”

3. Page 2 of Application Form

This is the only page that the borrower actually needs to complete. However, it is confusing and 

cluttered. We offer the following suggestions to streamline this page.

• Remove Date of Birth from Section 1. This is not required on any other Department 

forms and takes up unnecessary space.

Response:

The applicant’s date of birth is collected in Section 1 because the Department’s TPD 

servicer needs this information to search applicant loan history information in the 

National Student Loan Data System (NSLDS).

• Section 2 is misnamed, includes too many different concepts, and is disorganized. We 

offer the following suggestions:

o The very basic instructions (i.e. use dark ink) should be in or above Section 1.

o The address to send the application is already on the first page and is unnecessary.

o Section 2 should focus on VA and SSA information exclusively. We 

recommend that it be changed as follows:

SECTION 2: VETERAN AND SOCIAL SECURITY APPLICANTS

1. Are you a veteran who has received a determination from the VA that you are unemployable 

due to a service-connected disability?

 Yes -- Attach documentation of the VA determination and complete Section 3.

 No 
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2. Have you received an SSA notice of award for SSDI or SSI benefits stating that your next 

scheduled disability review will be within 5 to 7 years?

 Yes -- Attach a copy of the SSA notice of award and complete Section 3.

 No

If you check “Yes” to Items 1 OR 2 above, complete section 3. You do not need to 

complete Section 4. All other applicants must have a physician who is a doctor of 

medicine or osteopathy complete and sign Section 4.

Response:

The placement of the basic instructions in Section 2 is consistent with the format used 

on other forms. However, we believe that some of the instructions can be moved to 

the “Read This First” section or deleted. Accordingly, the revised Section 2 contains 

only 3 bulleted instructions (compared with 6 bullets in the previous draft). 

We believe it will be helpful to discharge applicants if we repeat in Section 2 the 

address to which the completed form should be sent, in case the “Read This First” 

page becomes separated from the rest of the application. 

We do not agree with the recommended changes to the two questions in Section 2. 

We believe that the “skip logic” used in the Department’s draft provides clearer 

instructions to applicants. We have retained the original text with modifications to 

incorporate revised language related to acceptable SSA documentation.

• Section 3 could be much easier to read by removing the representative contact and 

relationship information. This is redundant since it is also on the required representative form. 

Rather, there should be a simple instruction for representatives to complete the representative 

authorization form.

Response:

We agree and have removed the representative contact and relationship information. In the 

space created by the removal of these data elements we have added instructions for 

completion of the representative designation form. 

4. Process and Definitions

Section 5 and 6 of the form contain very important information for borrowers. However, due to the 

large volume of information and the nature of completing forms, it is important to arrange these 

sections in a way so that information is more easily accessible. We offer the following suggestions to 

achieve that goal:

• Section 6 (process) should come before section 5 (definitions) because it is more important for 

a borrower to read.

Response:

We have retained the current ordering of these sections, as we believe the definitions should 

be presented before the sections in which the various defined terms are used. 

• Within section 6, some sections should be displayed more prominently. Specifically:

o The post-discharge monitoring and the reinstatement sections need to be more 

prominent. Because the consequences for failing to do this process are so high, these 
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sections should come first and their importance should be highlighted.

Response:

We believe it is important to present the steps in the discharge process in 

chronological order. Therefore, it would not be appropriate to place the postdischarge monitoring and reinstatement sections first. Note that each step in the 

discharge process is numbered and has a heading in bold text to make it stand out. 

o Separate the discharge process for people who use the SSA process from “all other 

applicants.” Although they are regulated with “other applicants,” their process more 

closely resembles the VA process. Therefore, its current placement is confusing.

Response:

The SSA process resembles the VA process only in that a physician’s certification is 

not required in Section 4 of the form. Otherwise, the SSA process is the same as the 

process for applicants who qualify based on a physician’s certification and therefore 

should be covered in the “all other applicants” section. 

• Remove the notification of intent section. This process is not required and if the borrower has 

the form, they have likely already done it. Alternatively, frame it so that borrowers know that 

they can notify the Department of their intent to apply and that if they do, collection efforts 

will cease and rename it: Ceasing collection while completing application.

Response:

We agree and have deleted this section. 

• Section 5 states that all references to “you” throughout this application include the 

representative. This is problematic for two reasons. First, in some places, this 

reference does not make logical sense. For example, the first question in Section 2 asks 

“Are you a veteran...” The representative’s status in this question is irrelevant. Also, the 

representative is often not in a position to certify the accuracy of information the 

borrower submits. As attorneys, for example, we are always careful to ask specific 

questions and advise our clients about providing truthful information, but only our 

clients know for sure in many cases if the information is true. Only the borrower should 

be responsible for certifying the accuracy of information. This is true for information 

about disability as well as for other information such as address changes and income 

information for reinstatement purposes. We believe this must be clarified in the 
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representative designation form and on the application.

Response:

We do not believe any clarification is needed. If a borrower designates a 

representative, the representative is acting on the applicant’s behalf, and that would 

include making certifications on behalf of the applicant. However, we have deleted the 

sentence explaining that all references to “you” include the representative. Since the 

application (and the representative designation form) make it clear that a 

representative is acting on behalf of the applicant in all matters related to the 

discharge request, we believe the sentence is unnecessary. 

Total and Permanent Disability: Applicant Representative Designation

This form indicates that representative designation can be revoked by the representative; 

however, the form only gives the option for the borrower to revoke the representative 

designation. Therefore, we recommend that a checkbox be added so that the representative can 

revoke the designation.

Response:

We do not believe that a separate check box is needed for this purpose. The form includes 

language explaining that the representative may revoke his or her designation by notifying the 

Department verbally or in writing. 

Also, in some circumstances a borrower will not be able to physically sign the Applicant 

Representative Designation Form. This form should explicitly explain the process for borrowers in this 

circumstance.

Response:

Because this is not common, we do not believe it is necessary to add special instructions to the 

form. These circumstances will be handled on a case-by-case basis. 

Total and Permanent Disability: Post-Discharge Monitoring

We offer the following suggestions to make this form more user friendly for borrowers:

• Remove some or all of the definitions section on page 2. Many of the definitions in this part 

are irrelevant to the borrower completing the form. Borrowers completing this form have 

already qualified for a TPD discharge and therefore do not require the definitions used for the 

initial application. Deleting this section will provide additional room to make the rest of the 

form easier to read.

Response:

We agree. The definitions of “Total and permanent disability,” “Substantial gainful activity,” 

and “Federal Family Education Loan (FFEL) Program” have been removed.

• The directions on where to send the form should be larger, bold, and centered.

Response:

We have made the recommended change. 

• Question 1 will likely be challenging for borrowers to complete. Few borrowers will know the 

required time period and will complete this question incorrectly. We recommend that the 

Department prepopulate the time period requested in Question 1 because it is in a better 
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position to determine the relevant time period.

Response:

Although it is not specifically stated on the draft form, these dates will be prepopulated by the 

Department’s TPD servicer. 

• Question 2 is confusing. We recommend changing it as follows:

Do you have income earned from employment during the period described in Item 1? 

Income from employment includes: (1) wages, tips, or other taxable employee pay, or (2) 

earnings generated from self-employment. Do not include untaxed income such as SSI, child 

support, or federal or state public assistance or other income, such as income from interest or 

dividends.

 Yes – You must provide documentation of all income you receive from employment or selfemployment. See Acceptable Documentation below.

 No

Response:

We agree that the revised presentation is clearer and have made the recommended changes, 

with minor modifications. Note that we have also retained the original language that followed 

the “No” check box on the previous draft (“By signing this form, you are certifying that you had 

no earned income from employment for the period described in Item 1. Continue to Section 

3.”). We assume that the deletion of this text was unintentional. 

• Acceptable Documentation

o Move the “Acceptable Documentation” section to page 2 in the space created by 

deleting the definitions. This will create more space on page 1 and make it easier to 

complete.

Response:

We believe it is better to explain what constitutes acceptable documentation 

immediately below the question that asks whether the applicant had any earned 

income from employment, so that the applicant does not have to refer to a separate 

page for this information. 

o This form currently requires that documentation be less than 90 days old. However, 

these documents must cover a one year period. A borrower may have had earnings in 

that period that did not fall within the last 90 days. Therefore, we suggest modifying this 

requirement to reflect this possibility.

Response:

We agree. The entire sentence that included the “no older than 90 days” requirement 

has been removed.