Richard Senese
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ED-2016-ICCD-0075-0027
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Capella University
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Page
1 of the application does not define Borrower Defense to
Repayment standards for the borrower. Instead, it suggests “if
your school misled you or engaged in other misconduct”
[emphasis added]. This is broader than BDTR, and will draw in a
number of borrowers who are not eligible. Not only will that
waste time on the part of the Department and institutions, but
it will draw borrowers in under fast pretenses and unfairly
elevate expectations for borrowers who are unlikely to fit the
requirements for relief. The narrative at the beginning of the
application should be clear about under what circumstances a
borrower can have their loans discharged. This narrative on the
first page should also include the sentence currently contained
on page 5 of the application: “For more information about
the basis for borrower defense relief, see
StudentAid.gov/borrowerdefense.”
The
proposed application questions are remarkably leading, coaxing
borrowers into answering questions geared toward generating
bases for repayment, even when they may have none. For example,
the application asks “what the school … failed to
tell you,” and “did the school mislead you (or fail
to tell you important information about) …”
employment prospects, nature of loans, transferability of
credit, etc. Current state, most consumer forms we encounter for
government investigations are more open ended, and simply invite
students to set forth in their own terms the basis for
grievance. By leading the borrower through preset check boxes
which by their nature presume an entitlement for relief, the
BDTR application unfairly manufactures claims for borrower
defense. Capella is wholly in favor of a borrower-friendly form,
however the application in its current state unfairly generate
bias.
As
mentioned in our formal comments on the draft Borrower Defense
to Repayment regulations, Capella has Due Process concerns
regarding schools’ ability to present an adequate defense.
Under the proposal’s “fact-finding process,”
of the evidence received and considered by the Department, the
school is entitled to receive “upon reasonable request”
only “records” that the Department “considers
relevant to the borrower defense.” Capella recommended
that the Department revise its proposal to make clear that
schools have a right to access all the materials considered by
the Department in adjudicating a borrower’s claim. To this
end, it is our recommendation that “Section V.
Certification” be revised to include verbiage indicating
to the borrower that all materials submitted as part of the BDTR
claim may be shared with the institution as part of the
investigation.
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The
Borrower Defense to Repayment (“Borrower Defense”)
regulations with regard to the “misrepresentation”
standard encompass activities in addition to those that are
misleading. Therefore, the Department’s position is that
the description on Page 1 of the Borrower Defense application is
appropriate.
The
subsections within Section III of the Borrower Defense
application reflect the Department’s review of a
significant amount of evidence demonstrating common
misrepresentations by schools that could form the basis for a
Borrower Defense. The subsections herein are for the purpose of
informing borrowers with regard to possible bases for Borrower
Defense. With regard to the commenter’s concern, the form
calls for the borrower to provide detailed information in
support of any claim asserted. Additionally, each borrower is
required to certify that he or she is providing true and
complete information within the application. The Department’s
position is that this provides borrowers with notice that they
must provide accurate information, which addresses the
commenter’s concern.
This comment is
unrelated to the information collection required for borrowers
seeking to file a Borrower Defense application, and the
requested revision is not necessary or appropriate to include
within the certification section of the application form.
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Vicki Shipley
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ED-2016-ICCD-0075-0028
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Association/Organization
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On behalf of the Federal
Family Education Loan (FFEL) program community, thank you for the
opportunity to provide the attached comments to the proposed
Application for Borrower Defense to Loan Repayment form. As you
review this second round of comments, please take particular note
that they include several comments previously provided August 28
because in our view they are substantive and important to ensure
clarity, consistency and transparency for borrowers. We
respectfully encourage you to reconsider both our current
proposed edits and our prior suggestions, which we believe will
enhance the understanding of the new form.
[The commenter provided
a marked up version of the borrower defense application form with
a number of suggested edits.]
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The Department accepted a
number of the commenter’s edits within the marked up
version of the Borrower Defense application form that was
provided, including within Section III (Basis for Borrower
Defense), Section IV (Forbearance/Stopped Collections), and
Section V (Certification).
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Robyn Smith
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ED-2016-ICCD-0075-0029
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Legal Aid Foundation of
Los Angeles
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The
commenter’s comments include the following:
The revised form does not
appear to incorporate plain language tailored to the intended
audience – students who were defrauded primarily by
unscrupulous for-profit colleges. Following best practices for
form design, and The Plain Writing Act of 2010, the Department
should use plain language on all versions of the form. In
addition, the Department should avoid language that requires
applicants to interpret complex legal concepts. For the borrower
defense application form, the Department should use plain
language and clear illustrative examples so that borrowers can
complete the application without needing legal advice.
As
far as we are aware, the Department has not tested the form for
consumer comprehension and usability, to ensure all students who
attend various institutional levels and types are able to
comprehend and complete the form. While government forms are
often written at an 8th grade reading level to ensure
accessibility, according to one readability index, the prompts
in this form require up to 24 years of education to understand.
Any
“yes” or “no” options on the form should
be clearly marked as distinct and placed side-by-side. The
Department should also place consequences of each option
directly below the choice, rather than in the preceding text.
We
are particularly concerned with the placement and marking of the
following question: “*Did any of the issues you describe
above affect your decision to enroll in this school?”
While it appears that the Department has attempted to respond to
our comments by placing this immediately below each subject
matter area of substantive questions, we are concerned it will
get lost and remain unanswered by borrowers due to:
Its
placement immediately below the text box for each question
without any spacing, as if it is an unimportant footnote.
Lack
of special marking or highlighting of the question or Yes/No
checkboxes after the question indicating that the student must
answer the question and that his/her application will remain
incomplete with no answer.
The
Department should ensure that all fields are flexible enough to
capture unique circumstances, including:
The
revised form does not allow a borrower to indicate that she
attended multiple programs and to answer questions about
representations made regarding each different program.
The
form does not allow the borrower to indicate that she attended
school for years with gaps in attendance.
While
Section I of the form refers to Parent PLUS borrowers, the
remaining sections do not clarify that only the person who
experienced the illegal conduct should answer the questions in
Section III and attest to those facts. If not clear, the form
essentially asks parents to attest to facts of which they have
no personal knowledge. This has been an issue for Parent PLUS
borrowers using the Corinthian attestation form. Several of our
client parent borrowers report being told by Department of
Education that they should sign the attestation form, rather
than the student.
The
form should capture the breadth of available bases for relief.
Eligible borrowers may be discouraged if they do not see their
circumstances described on the form. Currently, Section III of
the form lists a few types of misrepresentations and repeatedly
asks if the misrepresentations affected the borrower’s
decision to enroll. The limited list excludes important
categories of misrepresentations such as institutional and
programmatic accreditation misrepresentations,
misrepresentations regarding borrowers’ refunds or
cancellation rights under federal or state law, and a number of
other common and serious misrepresentations.
The
form currently presents an unnecessarily restrictive view of the
reliance standard: it lists six discrete types
misrepresentations, presents a problematic “other”
category, and asks borrowers if they chose to enroll in a school
based in part on misrepresentations regarding each of these
subsections. The form should include an instruction that
borrowers can provide information about multiple types of
misrepresentations, including misrepresentations about issues
not expressly itemized in the form.
The
Department should encourage students to submit additional pages
as necessary in writing or ensure that a fillable pdf has
sufficient space for students to provide thorough and detailed
information.
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The
Department is aware that it is important to provide plain
language within the application form such that borrowers of
various educational levels can understand the language within
the form. For that reason, we consulted with Department staff
with expertise in customer experience issues to ensure that the
form is clear and uses plain language. The Department also
tested this form with borrowers for usability in order to ensure
that borrowers could understand the terms within the form.
Further, the Department drafted this form such that borrowers
must provide an explanation of the school’s conduct in
their own words, but we also included broad categories under
which a borrower may be eligible for relief in Section III
(Basis for Borrower Defense). Therefore, each of the relevant
sections uses general questions within certain categories in
order to inform the borrower of possible bases for relief, while
ensuring that the borrowers use their own language and phrasing
within their applications.
Both
before and after the comment period, the Department tested this
form with borrowers for usability in order to ensure that
borrowers could understand the terms within the form. The final
version incorporates numerous word choice revisions based on
feedback from the borrower usability testing.
The
“yes” or “no” options within the form
are side-by-side. The consequences of selecting “yes,”
that borrowers must also provide narrative regarding their
allegations against an institution, are described immediately
after each sub-section within Section III (Basis for Borrower
Defense).
The
Department’s new, final Borrower Defense to Repayment
regulations (81 Fed. Reg. 75926-76089) require that individual
borrower applications demonstrate reliance with regard to any
claims made by the borrower. This question is provided
immediately after the relevant text box, including an asterisk
(*) that indicates that this is a mandatory field that the
borrower must complete. Within the Department’s
forthcoming Borrower Defense form wizard, this will be a
required field for any section for which the borrower includes
text in the text box immediately above.
The
Department has accepted the commenter’s suggestion.
Sections II (School Information) and III (Basis for Borrower
Defense) reflect these changes.
The
Department drafted the Borrower Defense form for the purpose of
providing borrowers with general sections that encompass the
most common types of school misconduct that the Department has
found in its review of a large number of Borrower Defense
applications to date. The form also includes a sub-section
within Section III (Basis for Borrower Defense) to allow
borrowers to address “Other” types of activities
that could form the bases for Borrower Defense relief. Further,
the form is supposed to both prompt borrowers to provide
relevant information, but also afford them the opportunity to
explain what happened to them in their own language. The
Department also is aware, from its user testing of the form and
other forms that it utilizes, that if the form is too lengthy,
borrowers will be less likely to complete and submit it.
The
instructions within Section III (Basis for Borrower Defense) of
the application form inform borrowers that they can provide
information for more than one type of institutional
misrepresentation or activity, and provides an “Other”
section for borrowers to provide information that does fall into
the other categories. For these reasons, the Department does
not believe that the form is restrictive.
Section
III (Basis for Borrower Defense) of the application form
specifically encourages borrowers to provide any additional
information if they do not have sufficient space to provide a
full description in any of the text boxes. Within the
Department’s forthcoming Borrower Defense form wizard,
there will be sufficient space for students to provide
narrative.
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Silvia A
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ED-2016-ICCD-0075-0030
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Student
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I was a former student who
attended Heald College around 2011-2013. Before I enrolled into
Heald, the admission representative who I spoke with informed me
about the job rates and that the units I will obtain at Heald
were transferable to other colleges. As of today, I have tried
transferring the units I earned from Heald College to two
different community colleges located in my county only to be told
that those units were not acceptable. I am now stuck with 40
units, no degree and a big student loan.
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This comment is unrelated
to the information collection required for borrowers seeking to
file a Borrower Defense claim on this form.
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