Second Neg Reg Session Kicks Off With Prison Education Programs, Total and Permanent Disability, and Closed School Discharges

By Owen Daugherty, NASFAA Staff Reporter

The Department of Education's (ED) negotiated rulemaking committee reconvened Monday to discuss a host of issues related to college affordability and student loans, starting its second week of dialogue in an effort to come to consensus on a number of policy frameworks.

Monday's session began with an overview of a subcommittee's work to craft regulatory language on Pell Grant eligibility for prison education programs. The subcommittee met last month over the course of three days and came to tentative agreement on a number of topics, all of which were detailed Monday before the full committee.

Some negotiators who participated in the Prison Education Programs Subcommittee were on hand Monday to give a presentation before the full committee, noting proposed language they developed, fielding questions from committee members, and discussing areas that are in need of more work and consideration.

The subcommittee spent significant time previously discussing the definition of a "prison education program," including technical changes to better reflect statute, regular reevaluations of prison education program approval, credit transfer for students, and reporting requirements for institutions, all of which was covered by NASFAA throughout the subcommittee's work. 

Stanley Andrisse, assistant professor at Howard University's School of Medicine, noted there was not a state department of corrections representative on the subcommittee or full committee and proposed including Anne Precythe, director of the Missouri Department of Corrections, as a negotiator. 

The committee agreed to add Precythe to both the full committee and subcommittee, which will reconvene next week for additional days of discussion.

Notably, ED officials indicated they are in the process of putting together finalized language for the subcommittee to review. 

The full committee began discussion on the first set of regulatory language put forward by the department, discussing ED's proposal on total and permanent disability (TPD).

Considering the fact that many borrowers who apply for TPD have to navigate obstacles in order to have their loans discharged, ED is attempting to simplify the process by automating the process through information sharing between federal agencies. The regulatory language is based in part on feedback from negotiators from the first session.

Jennifer Hong, a negotiator on behalf of the department, began by noting the limits for automation due to the at times lack of legal authority to obtain the data, as well as privacy issues considering sharing those data.

While the automation efforts were welcomed and applauded by negotiators, several raised issues with proposed regulatory language. ED is proposed using data matches with federal agencies, including the Social Security Administration (SSA) if the borrower already qualifies for Social Security Disability Insurance (SSDI) or Supplemental Security Income (SSI) benefits.

Justin Hauschild, representing student veterans, said automation should be the foundation of TPD, and urged ED to add language that it will continuously seek to improve automation on an ongoing basis. He argued automation is key to ensuring no student veteran who is eligible for TPD falls through the cracks and noted the fact that they are focusing on these regulatory provisions to ensure they are not interpreted differently by future administrations.

"We really are regulating not just for now but also in the future," he said.

A temperature check on the proposed regulatory language did not bring tentative agreement, with many negotiators issuing "thumbs down."

The committee then moved on to a robust discussion regarding closed school discharges and ED's regulatory language on the issue.

ED officials said the department is proposing "significant expansion" of automatic discharge when it comes to schools that have closed their doors.

ED is defining a school's closure date as the earlier of the date that the school ceases to provide educational instruction in most programs, as determined by the secretary of education, or a date chosen by the secretary of education that reflects when the institution had ceased to provide educational instruction for most of its students.

Hong said the department is expanding automation for borrowers to receive a closed school discharge, but it has been the department's longstanding position  based on the statutory interpretation that a borrower only qualifies for a closed school discharge if they do not complete the program. 

Josh Rovenger, a negotiator from Legal Aid Society of Cleveland, took issue with language stipulating that borrowers who attended a school that closed prior to 2014 are only entitled to an automatic discharge if they did not then re-enroll at another school in a comparable program, whereas those who attend schools that closed after 2014 can receive a discharge if they complete a comparable program so long as it was not through a teach out, noting that the pre-2014 closure group is held to a higher standard.

"Those are still the borrowers that we should be taking the largest steps for," he said. "Those are the borrowers who are least likely to know of their right to closed school discharge relief, and who have been saddled with debt for the longest."

Hong said the department is limited to provide those borrowers with auto-discharge because they don't have the teach-out data available to them prior to 2014.

Another major point of contention raised by negotiators was the fact that when schools close and students try to transfer credits, they are often unable to do so.

David Tandberg of the State Higher Education Executive Officers Association said that by not forgiving loans of students who transferred only a few credits or none at all, it is discouraging students who chose to try to complete their degrees.

"We need to recognize harm to students, and every student that experiences a closure is harmed and their likelihood of completing their credential at any institution is diminished," he said. "Every student that experienced a closure [should get] automatic loan discharge."

Negotiators overwhelmingly said language will need to be reworked if consensus is to be achieved, and a temperature check on the topic did not yield consensus. 

The full committee will reconvene Tuesday and begin with discussion on regulatory language from ED on eliminating interest capitalization.

 

Publication Date: 11/2/2021


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