Negotiated Rulemaking for Higher Education 2016 - Borrower ...



U.S. Department of Education

Title IV Loans

Borrower Defenses

Meeting Summary

January 12-14, 2016

Welcome

Deputy Under Secretary Jeff Appel welcomed the members of the Committee and thanked them for agreeing to assist the Department in developing proposed regulations for determining which acts or omissions of an institution of higher education a borrower may assert as a defense to repayment.

Introductions

All members who were present introduced themselves.

Overview of the Negotiated Rulemaking Process

Susan Podziba and Jacki Wilson, the facilitators, provided an overview of the negotiated rulemaking process. They explained that the goal of Committee’s discussions is to develop consensus regulatory text that will form the basis of the regulations proposed by the Department of Education.

Review and Adopt Protocols

Committee members discussed, revised, and adopted the draft organizational protocols, which will govern the Committee’s activities throughout the negotiated rulemaking process.

They agreed to list the members of the Borrower Defenses Negotiated Rulemaking Committee as follows:

US Department of Education Gail McLarnon Federal Negotiator

Fred Marinucci Office of General Counsel

Facilitators Susan Podziba Podziba Policy Mediation

Jacqueline Wilson

Community of Interest Primary Negotiator Alternate Negotiator

Students/Borrowers Ann Bowers Chris Lindstrom

For-profit College U.S. Public Interest Research

Borrower Group

Legal assistance organizations Noah Zimmer Eileen Connor

that represent students Housing and Special Litigation Unit

Economic Rights New York Legal Assistance

Advocates Group

Consumer advocacy organizations Maggie Thompson Margaret Reiter

Higher Ed, Not Debt Attorney

Community of Interest Primary Negotiator Alternate Negotiator

State attorneys general and other Bernard Eskandari Mike Firestone

Appropriate State officials Deputy Attorney Assistant Attorney

General, California General, Commonwealth of

Massachusetts

Groups representing U.S. military Walter Ochinko Will Hubbard

Servicemembers or veterans Veterans Education Student Veterans

Success of America

Accreditors Karen Solinski Michale McComis

Higher Learning Accrediting Commission of

Commission Career Schools and Colleges

State higher education Becky Thompson

executive officers Washington Student

Achievement Council

Financial aid administrators Alyssa Dobson Mark Justice

Slippery Rock The George Washington

University University

Minority serving institutions Sharon Oliver Emily London Jones

North Carolina Xavier University of

Central University Louisiana

Two-year public institutions Angela Johnson Shannon Sheaff

Cuyahoga Mohave Community

Community College College

Four-year public institutions Kay Lewis Jean McDonald Rash

University of Rutgers University

Washington

Private, non-profit institutions Christine McGuire David Sheridan

Boston University Columbia University

Private, for-profit institutions Dennis Cariello Chris DeLuca

Hogan Marren DeLuca Law

Babbo & Rose, Ltd.

FFEL Program lenders and loan Wanda Hall Darin Katzberg

Servicers Edfinancial Services Nelnet

FFEL Program guaranty agencies Betsy Mayotte Jaye O’Connell

and guaranty agency servicers American Student Vermont Student Assistance

(including collection agencies) Assistance Corporation

Petitions for Membership

There was a petition for membership that was denied by the Committee. A petition to add an alternate for the groups representing U.S. military servicemembers or veterans was approved.

Overview of the Issues

Gail McLarnon, the federal negotiator, provided a brief overview of the five issues that are part of the scope of issues to be negotiated: 1) Whether to establish a new standard for the purpose of determining whether a borrower can establish a defense to repayment on a loan based on an act or omission of a school; 2) Time period for availability of Borrower Defense to Repayment claims; 3) Developing a regulatory framework for the process of submitting, reviewing, and determining the veracity of Borrower Defense to Repayment (DTR) claims; 4) Update and expand the existing categories of false certification discharges; and 5) Whether to revise the financial responsibility or administrative capability regulations, and whether to add disclosure requirements, to help protect students, the federal government, and taxpayers against potential school liabilities and risks.

Formally Finalize the Agenda

Committee members proposed nine items to be added to the agenda of issues to be negotiated. The Committee approved four of the proposed items. They are: 1) Allow loan holders to rely on faxed or electronically submitted death certificates for purposes of discharging loans or TEACH Grant service obligations based on the death of the borrower or TEACH Grant recipient; 2) Revise the Direct Consolidation Loan regulations to include Nurse Faculty Loans in the listing of loans that are eligible for consolidation; 3) Provide Technical Changes to the REPAYE Plan regulations to (a) specify that a borrower’s monthly payment amount is not adjusted to take into account the student loan debt of the borrower’s spouse if only the borrower’s income is used to calculate the payment amount, and (b) remove an incorrect reference to loss of partial financial hardship status; and 4) Conform compromise and settlement regulatory authority to Treasury amounts.

One item, Notice of investigations to prospective students, was considered to be part of Issue 5.

The following four items remain under consideration by various Committee members: 1) Prohibiting Guaranty Agency Interest Capitalization; 2) Upon Loan Rehabilitation Revise 34 CFR 682.410(b), regarding the charging of collection costs by a guaranty agency to a defaulted borrower who responds within 60 days to the initial notice sent by the guaranty agency after it pays a default claim and acquires the loan from the lender; 3) Closed school discharge; and 4) Removal of FFEL from Income Contingent Repayment Plans at Section 685.209.

Decisions about the remaining four items will be communicated to the Committee as such information becomes available. The Department will prepare and/or revise and distribute issue papers for items that are added to the scope prior to the next meeting.

In addition, some Committee members requested that the Department provide for early implementation of the Borrower Defense regulations. The Department will consider that request internally.

Discussion of Issues

The Committee discussed in detail the original five substantive issues and the four added issues, which are currently within the scope of issues to be negotiated. The discussions began with a review of the issue papers prepared and distributed by the Department and included the questions posed. Committee members posed additional questions and offered their interests, concerns, and preferences relative to elements of each issue.

Special Master Briefing

Joseph A. Smith, Jr., Special Master for Borrower Defense, U.S. Department of Education briefed the Committee on the status of his work to develop a process for discharging loans, loans that have been discharged, and expectations for the discharge of loans in the near future.

The Committee members, by consensus, formally requested that the Special Master attend a future negotiated rulemaking session when he can be available for a longer presentation, including time for a question and answer period. The Department took note of this request.

Public Comment

Opportunities were provided at the end of each meeting day for members of the public in attendance to provide comments.  Public comments were made on each day of the meeting.

Next Meeting

The next Committee session will be held on February 17-19, 2016 at the U.S. Department of Education in the 8th Floor Conference Center located at 1990 K St. NW in Washington, D.C. Sessions will begin at 9:00 a.m. and conclude at 5:00 p.m. each day.

Next Steps

The Facilitators will distribute a draft summary of the meeting, and a draft agenda for the next meeting. In addition, they will distribute draft regulatory text provided by the Department for the issues discussed and issue papers for the items that will be added to the scope of issues to be negotiated. Information that committee members want to share with the Department should be sent to the facilitators for distribution to the entire committee.

Committee members will communicate with others within their communities of interest to inform and get feedback from them.

Kay Lewis will research questions related to record retention and provide relevant information to the Committee. Michael Firestone will provide information about bond requirements and state auditor methods for determining bond amounts required of institutions of higher education in the Commonwealth of Massachusetts.

Members Present

Non-Federal Members

Ann Bowers

Dennis Cariello

Eileen Connor

Chris DeLuca

Alyssa Dobson

Bernard Eskandari

Mike Firestone

Wanda Hall

Will Hubbard

Angela Johnson

Emily London Jones

Mark Justice

Darin Katzberg

Kay Lewis

Chris Lindstrom

Betsy Mayotte

Dr. Michale McComis

Christine McGuire

Walter Ochinko

Jaye O’Connel

Sharon Oliver

Jean McDonald Rash

Margaret Reiter

Shannon Sheaff

David Sheridan

Karen Solinski

Becky Thompson

Maggie Thompson

Noah Zimmer

Federal Members

Gail McLarnon

Fred Marinucci

Facilitators

Susan Podziba

Jacqueline Wilson

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