Negotiators reconvened in Washington, DC this week for the third and final session of negotiated rulemaking for borrower defense to repayment. While the goal of the negotiated rulemaking process, or neg reg, is for the committee to come to a consensus on regulatory language, the group got off to a slow start as discussions stalled on recurring points of contention.
The committee hit a snag midway through the morning when one negotiator reiterated concern with the basis of the first issue — whether to establish a federal standard at all. The negotiator, John Ellis of the Texas Attorney General office, said he was skeptical of establishing a federal standard.
“Our topline concern is that we are trying to create an entirely new standard with new language, much of which … I don’t know what it means,” Ellis said, referencing changes the Department of Education (ED) made to provisions such as the standard of evidence used to support a borrower defense claim. At the same time, he said he recognized that ED applying 50 different state standards is “unworkable.”
After delaying the 2016 borrower defense regulation, Education Secretary Betsy DeVos said claims would be processed under the existing regulation, which was written in the early 1990s. Under that regulation, the federal standard essentially defers to state statute. In a notice to be published in the Federal Register on Wednesday, ED said it is again delaying the implementation of the 2016 regulations to July 1, 2019, the same date that the regulations being negotiated now are scheduled to take effect
During a public comment period at the end of the day, Rep. Mark Takano (D-CA), who sits on the House Education and the Workforce Committee, gave an impassioned speech regarding the regulations and the neg reg process.