Action Memorandum

Automating the Discharge of Federal Student Loan Debt

for Individuals who are Totally and Permanently Disabled

(Revised December 14, 2020)

By Alex Elson

DECEMBER 2020

* Alex Elson is Senior Counsel and a co-founder of the National Student Legal Defense Network (“Student Defense”). Alex was one of the original

attorneys hired by the U.S. Department of Education to establish its borrower defense program, designed to provide student loan relief to borrowers

who were subject to unlawful deception by their colleges.

Action Memorandum

Automating the Discharge of Federal Student Loan Debt for Individuals who are

Totally and Permanently Disabled (Revised December 14, 2020)

I. Summary

Under the Higher Education Act (“HEA”), student loan

borrowers who are “totally and permanently” disabled

are entitled to a complete discharge of their federal

student loans.

But under current practices, even after

the Social Security Administration (“SSA”) determines

that an individual is eligible for such a discharge, the

U.S. Department of Education (“Department”) requires

a borrower to go through additional hoops. Rather than

using information shared between agencies to automate the

process after an SSA determination, the Department forces

borrowers to separately apply for a total and permanent

disability (“TPD”) discharge. As a result, and because of this

additional hurdle, nearly 70% of borrowers identified by SSA

as eligible for relief (approximately 400,000 borrowers) had

not applied for, let alone received, the relief to which they

are entitled.

In order to promptly provide relief to these borrowers,

before student loan payments are once again due, the

Department should waive negotiated rulemaking and

immediately issue a notice of proposed rulemaking

(“NPRM”) with a thirty-day comment period that proposes

to: (i) eliminate the need for a TPD application

and grant

automatic discharges to all individuals who have matched as

TPD-eligible through the SSA data (“SSA matches”) and (ii)

eliminate the three-year post-discharge monitoring period.

These changes could provide an estimated $14 billion in

student loan discharges to approximately 400,000 student

loan borrowers with disabilities who are not receiving the

relief to which they are entitled.

II. Background and Current State

Under the HEA, student loan borrowers with total and

permanent disabilities are entitled to a discharge of their

outstanding debt.

Borrowers with FFEL Program loans,

Direct Loans, and Perkins Loans are entitled to the

discharge.

Borrowers are considered to have a total and

permanent disability if they are “unable to engage in any

substantial gainful activity,” which relates to earning income,

by reason of any medically determinable physical or mental

impairment that can be expected to result in death, expected

to last for a continuous period of sixty months, or has lasted

for a continuous period of sixty months.

Pursuant to 2013 changes to the Department’s TPD

regulations, an SSA designation of “Medical Improvement

Not Expected” (“MINE”) qualifies a borrower for TPD

relief.

Borrowers are also considered to have a total and

permanent disability if they have been determined by the

Secretary of Veterans Affairs (“VA”) to be unemployable due

to a service-connected condition.

Generally, borrowers will

apply for a TPD discharge based on a doctor’s certification,

certain disability documentation or identification from

the SSA, or a VA determination that the borrower is

unemployable due to a service-connected condition.

As a practical matter, the Department regularly receives lists

of borrowers who are eligible for TPD discharges thanks to

information-sharing agreements signed with the VA (under

a program announced in the Trump Administration)

and with SSA (under a program initiated in the Obama

Administration).

The Department then notifies these

borrowers—hundreds of thousands of individuals—that they

are eligible for relief. According to data the Department

provided to the National Student Legal Defense Network

(“Student Defense”) through the Freedom of Information

Act (“FOIA”), as of November 2019, 571,527 borrowers

matched through the SSA process alone.

But most of these

borrowers fail to seek relief even though the Department

has sent them notices: according to the Department’s

response to the Student Defense FOIA, as of November

2019, 353,445 SSA-matched borrowers, or over 60%, had

not received the relief to which they are entitled.

When borrowers fail to apply, and thus fail to receive the

discharge, but are delinquent in repayment, the Department

When borrowers fail to apply, and

thus fail to receive the discharge,

but are delinquent in repayment,

the Department often sends these

individuals to forced collections

and garnishes their disability

benets, all for debts they should

no longer owe.

often sends these individuals to forced collections and

garnishes their disability benefits, all for debts they

should no longer owe. If the facts present themselves, the

Department’s alternative means of involuntary collections

may also be used against these borrowers.

After years of bipartisan public pressure, in August 2019

President Trump signed a Presidential Memorandum

directing Secretary DeVos to automatically discharge

federal student loan debt for veterans identified as eligible

by the VA, explaining that the TPD application process

was “prevent[ing] too many of our veterans from receiving

the relief for which they are eligible” which, in turn, was

“frustrat[ing] the intent of the Congress that their Federal

student loan debt be discharged.”

Approximately three months after the Presidential

Memorandum, “Trump Administration lawyers” determined

that the agency could not legally move ahead with automatic

discharges unless they rewrote the TPD regulations to

allow for relief without an application.

On November

26, 2019, the Department published an IFR to amend the

Perkins, FFEL, and Direct Loan TPD regulations to allow

for automatic discharges for VA matches (“VA IFR”).

According to the VA IFR, the TPD application process was

“a barrier that creates significant and unnecessary hardship

for our disabled veterans” and removing it was therefore “a

pressing problem of national concern.”

Pursuant to the VA

IFR, automatic TPD discharges for veterans appear to be

back on track.

Although the same principle applies to approximately

400,000 SSA matches who have not received relief,

the Trump Administration has not taken any steps to

automatically discharge their loans.

In general, the Department treats determinations made

by SSA differently from those made by the VA in one key

respect: post-discharge monitoring requirements. Once the

Department discharges a debt due to a VA determination of

disability, there is no further monitoring of the borrower,

seemingly due to a statutory provision that a borrower

who is eligible for a TPD discharge due to a determination

by the VA “shall not be required to present additional

documentation…”

But the HEA also provides that “[t]

he Secretary may develop” safeguards to prevent fraud and

abuse involving non-VA disability determinations.

In response to a 1999 Department of Education Inspector

General report finding a large percentage of likely fraudulent

discharges,

the Department took a series of steps to

respond to the fraud. The processes have evolved over the

years, but since 2010, the Department requires borrowers to

be monitored for three years after discharge, during which

time the loans can be reinstated for any of the following

three reasons: (i) the borrower has earnings beyond a

minimally acceptable amount; (ii) the borrower has incurred

new federal student loans; or (iii) SSA changes its disability

determination.

If the borrower does not satisfy these

reinstatement period requirements, the “Secretary reinstates

[the] borrower’s obligation to repay” the previously

discharged loan.

The Department will also reinstate

a borrower’s loans if the borrower fails to provide the

required information during the monitoring period, though

the regulatory text is ambiguous on this point.

There is widespread support to extend automatic TPD

relief to SSA matches. Student Defense, along with a

bipartisan coalition in Congress, has called upon the Trump

Administration to do so.

In response to a March 3, 2020

letter from Student Defense and over 30 other advocacy

groups,

the Trump Administration signaled interest in

providing such relief, stating to NPR:

The Department’s current implementing regulations

require it to receive an application before completing a

civilian [total and permanent disability] discharge, but

we are interested in providing automatic discharge to

these borrowers and believe the FUTURE Act makes

this a possibility — but will require the department to

undergo negotiated rulemaking.

Although the Trump Administration did not act on this

“interest,” the Biden Administration should. There are

simply no significant or persuasive reasons not to extend

the automatic relief to all borrowers—veterans or civilians—

who share the statutory right to relief and who have been

identified by the federal government as eligible.

III. Proposed Action

In an earlier version of this memo, we suggested that the

Department could take a series of executive actions to

effectuate relief to eligible borrowers. We suggested that the

Department immediately issue an Interim Final Rule (“IFR”)

to suspend all collection activity for individuals who have

“matched,” and then commencing a negotiated rulemaking

to grant automatic discharges to those individuals and

eliminate the post-discharge monitoring period.

Although we continue to believe that our prior

memorandum provides the Department with a path

towards affording affected borrowers (i.e., borrowers with

a MINE designation) the relief to which they are entitled,

it was written at a time when the “freeze” on student loan

repayment—in light of the COVID-19 crisis—was set to

expire on December 31, 2020. Given the growth of the

pandemic, and the extent to which we anticipate student

loan repayment problems continuing into 2021, we have

conducted additional thinking about how to expedite relief

to borrowers, in a manner that remains consistent with

governing law.

At the time of this writing, the Trump Administration has

extended the “freeze” on student loan repayments through

January 31, 2020.

Based on public reporting, we presume—

and base our analysis upon the presumption—that the

incoming administration will continue that freeze, although

for an unknown period of time. Given the freeze, an IFR

suspending collection appears to be an unnecessary step

for the Department to take. Nevertheless, the path towards

relief for disabled borrowers must continue.

Perhaps the most expeditious approach to consider relief

for disabled borrowers, and to afford such relief before the

expiration of any further freeze, is for the Department to

promptly issue an NPRM proposing to (i) grant automatic

discharges to SSA matches by eliminating the need for a

TPD application and (ii) eliminating the three-year post-

discharge monitoring period. This NPRM can be relatively

short—although it will need to provide a regulatory impact

analysis (“RIA”) that estimates and quantifies burden. We

suspect that an NPRM could be prepared and issued within

the first 30-45 days of the new Administration.

Although the Department is ordinarily required by the HEA

to use negotiated rulemaking to develop a proposed rule

for programs authorized under Title IV, it has the statutory

authority to bypass that process when it finds that “applying

such a requirement with respect to given regulations

is impracticable, unnecessary, or contrary to the public

interest.”

In light of the express cross-reference to, and

incorporation of, section 553 of the APA, 5 U.S.C. § 553, this

is often referred to as the “good cause” requirement.

“Good cause” under Section 553 of the APA “is determined

on a ‘case-by-case’ basis, based on the ‘totality of the factors

at play.’” California v. Azar, 911 F.3d 558, 575 (9th Cir. 2018)

(citing United States v. Valverde, 628 F.3d 1159, 1164 (9th Cir.

2010)); see also Sorenson Commc’ns Inc. v. F.C.C., 755 F.3d 702,

706 (D.C. Cir. 2014) (explaining that the good cause analysis

is an “inevitably fact-or-context dependent” inquiry). The

good cause exemption “excuses agencies from the notice

and comment requirement—and, by extension, excuses the

Department from the negotiated rulemaking requirement

for Title IV regulations—only ‘in emergency situations, or

where delay could result in serious harm.’” Bauer v. DeVos,

325 F. Supp. 3d 74, 96–97 (D.D.C. 2018) (quoting Jifry v.

FAA, 370 F.3d 1174, 1179 (D.C. Cir. 2004)); see also Sorenson

Commc’ns Inc., 755 F.3d at 706 (explaining that good cause

exists “where delay would imminently threaten life or

physical property”); California v. Azar, 911 F.3d 558, 576 (9th

Cir. 2018) (holding that good cause may be found where

“delay would do real harm to life, property, or public safety”).

Here, there is good cause to waive negotiated rulemaking

with respect to the need for an application because the

Department has already determined that once it becomes

aware that SSA has made a certain determination, the

Department has the necessary “proof of [the] borrower’s

TPD” eligibility.

In 2016, the Department announced

that it had been working closely with SSA to “complete a

data match to identify federal student loan borrowers” who

have the MINE designation which “qualifies them for loan

forgiveness under the TPD discharge program.”

Thus, as a

result of this ongoing data-match program, described above,

the Department has already determined that a particular

category of borrowers are entitled to a loan discharge, and

already knows—from SSA—which individual borrowers are

part of that category.

Accordingly, as the Department determined in connection

with the VA match, “there will no longer be a need for” an

application from a borrower, because the Department no

longer has discretion to deny an SSA-matched-borrower’s

application for a TPD discharge. Thus, the Department’s

prior statements, made in connection with the VA IFR,

are prescient:

As the Court found in Metzenbaum v. Federal Energy

Regulatory Commission, 675 F.2d 1282, 1291 (D.C. Cir.

1982), the opportunity for notice and comment where

there is no discretion is ‘‘unnecessary.’’ Id. (quoting 5

U.S.C. 553(b)(B)). The Court further stated that notice

and comment for such a nondiscretionary action

‘‘might even have been ‘contrary to the public interest,’

given the expense that would have been involved in a

futile gesture.’’ Id. See also Lake Carriers’ Ass’n v. E.P.A.,

652 F.3d 1, 10 (D.C. Cir. 2011) (notice and comment

rulemaking ‘‘would have served no purpose’’ where

EPA lacked the authority to amend or reject the

conditions at issue).

In the context of the VA IFR, the Department used this

rationale to find “good cause” to waive both notice-and-

comment rulemaking and negotiated rulemaking. These are,

of course, separate analyses; and good cause to waive one

requirement should not be concomitant with good cause to

waive the other. Here, because the negotiated rulemaking

process is time intensive, and may outlast the current

repayment freeze, and in light of the discussion above,

we believe that the Department can waive the negotiated

rulemaking requirement. But for the freeze, the Department

would likely have good cause to waive the notice and

comment requirement, as it did with respect to the VA

IFR. Nevertheless, the freeze has afforded the opportunity

to balance the interests (providing required discharges to

eligible borrowers immediately vs. engaging in the required

administrative processes) and provide an opportunity for the

public to comment on a NPRM.

The economic fallout from the COVID-19 pandemic

provides further good cause for bypassing negotiated

rulemaking in order to provide automatic relief to entitled

borrowers before the freeze ends. Borrowers who are

totally and permanently disabled and saddled with debt are

among the most in need of swift economic relief.

Because

TPD relief allows only for a discharge of the borrower’s

outstanding balance, these borrowers would be unable

to recoup payments made while the lengthy negotiated

rulemaking process plays out. They should not be required to

continue making payments that they cannot recoup after-the-

fact, on loans that the Department knows they do not owe,

while a lengthy negotiated rulemaking process takes place.

There is also good cause to waive negotiated rulemaking

with respect to changes to the monitoring period. As

discussed above, the HEA contemplates, but does not

require, a post-discharge monitoring period.

Thus, the

Department has the authority, through a new rulemaking, to

eliminate the monitoring period for SSA matches.

Importantly, the elimination of the application requirement

for borrowers who have matched must be conducted in

tandem with elimination of the monitoring period because

the two issues are inextricably linked. It would cause

enormous confusion—at a great harm to the public interest—

for the Department to provide automatic discharges to

400,000 borrowers and then require those borrowers to

submit to a monitoring period that they may not know

exists. Even when borrowers take the affirmative step to

apply, the monitoring period is causing tens of thousands

of borrowers to have their loans reinstated not because

of fraud in the system, but for the simple failure to fill out

paperwork.

If the Department were to keep the monitoring

period in place, it is possible that hundreds of thousands of

borrowers would have their loans reinstated, defeating the

entire purpose of this effort while simultaneously creating

an unnecessary administrative nightmare. Regardless,

because of the timing issues created by the freeze on student

loan repayments, a balance of the factors suggests that the

Department should still provide an opportunity for the

public to comment on a NPRM.

Finally, there is a question of the effective date – which has

three distinct components.

First, under the “Master Calendar” provision in the HEA,

“regulatory changes initiated by the Secretary affecting the

programs under [Title IV] that have not been published in

final form by November 1 prior to the start of the award

year shall not become effective until the beginning of

the second award year after such November 1 date.” 20

U.S.C. § 1089(c)(1). In effect, if this provision applied, any

changes that the Department finalized before November

1, 2021 would not take effect until July 1, 2022. And

while the provision allows for “early implementation,”

20 U.S.C. § 1089(c)(2)(B), designating a regulation for

early implementation permits an “entity” to “choose[] to

implement a regulatory provision prior to the effective date”

under the Master Calendar rule.

With respect to the Master Calendar requirement, the

Department should be guided by its actions with respect

to the VA IFR, in which it did not subject the regulatory

change to the master calendar rule. In that rulemaking, the

Department did not even mention the Master Calendar

requirement when discussing the effective date of the rule.

Such an approach is consistent with what we believe to be

the best reading of the Master Calendar requirement, i.e.,

it only applies to situations in which it is possible for the

Secretary—exercising her authority under 20 U.S.C. § 1089(c)

(2)—to designate a rule for early implementation. Under

such a reading, the requirement applies to regulations that

impact entities that could early implement a rule, but does

not apply to purely borrower-facing provisions that have

no impact on any “entity.” Regardless, even if the Master

Calendar requirement does apply, the Department should

be guided by its interpretation of the early implementation

language in other contexts, and simply designate the rule for

early implementation—even where there is no “entity” that

can choose to implement the regulatory change before the

presumptive July 1 effective date.

Second, the APA also requires regulations to be published

at least 30 days before their effective date, but excepts

from that requirement rules which grant or recognize an

exemption or relieve a restriction. 5 U.S.C. § 553(d)(1). Here

too, the Department should take guidance from the VA IFR,

where the Department noted that it was taking action to

“relieve restrictions on veterans by removing unintended

administrative burdens[.]”

Because the same justification

applies to borrowers with disabilities, who will have

unintended administrative burdens removed with respect to

the post-match application, the 30-day requirement in the

APA need not apply.

Third, the Congressional Review Act requires that a major

rule may take effect no sooner than 60 calendar days after

an agency submits a CRA report to Congress or the rule

is published in the Federal Register, whichever is later.

Nevertheless, the CRA also provides that if the agency has

“good cause”—and includes within the rule a “brief statement

of the reasons therefore” that “notice and public procedure”

is “impracticable, unnecessary, or contrary to the public

interest,” such a rule can take effect upon publication in the

Federal Register.

In the VA IFR, the Department expressly

tied its “good cause” finding to dispense with notice and

comment rulemaking to the good cause requirement under

the CRA.

Putting aside the question of whether good

cause to dispense with one procedure de facto constitutes

good cause for dispensing with other components, in this

case, for the reasons stated above with respect to the impact

on borrowers with disabilities, the agency would have

good cause to ensure that the rule takes effect before the

expiration of the current “freeze.”

IV. Risk Analysis

We see little risk in eliminating the post-discharge

monitoring period and need for a TPD application for SSA

matches, and in granting the automatic discharges. While it

is possible that some will raise concerns of borrower-fraud

without the monitoring period for SSA matches, we believe

the SSA MINE designation process provides a sufficient

guardrail and see little risk of a party being injured by the

rule proposed here.

Politically, we do not see pushback on

efforts to help Americans with permanent disabilities.

Endnotes

1 HEA § 437(a); 20 U.S.C. § 1087(a).

2 As of February 2020, “approximately 589,000 borrowers were

identiﬁed through the SSA match process, which began in April 2016.

Of those borrowers, more than 227,000 borrowers with loans totaling

$8.2 billion have been approved for discharges.” See U.S. Department

of Education Responses to Questions for the Record Submitted by

Senator Patty Murray Following the Subcommittee on Labor, Health

and Human Services, Education, and Related Agencies March 5,

2020 Hearing to Review of the FY2021 Budget Request for the U.S.

Department of Education at 40, available at https://www.help.senate.

gov/download/wordmurrayqfrs5mar20hearingonfy21edbudget.

Accordingly, as of February 2020, 362,000 borrowers were eligible

for, but had not received, TPD relief. Subsequently, on November

9, 2020, the Ofﬁce of the Inspector General for the SSA issued

a report ﬁnding that SSA erroneously omitted 36,248 borrowers

who should have matched through the SSA process, and SSA

agreed with the ﬁnding. See Ofﬁce of the Inspector General, Social

Security Administration Audit Report, “Social Security Administration

Beneﬁciaries Eligible for Total and Permanent Disability Federal

Student Loan Discharge,”(Nov. 9, 2020), available at https://www.

oversight.gov/node/92106. Therefore, while some borrowers may

have applied since February 2020, it appears that nearly 400,000

borrowers have matched through the SSA process but not received

relief.

3 See 34 C.F.R. § 685.213(b)(1) (“To qualify for a discharge of a Direct

Loan based on a total and permanent disability, a borrower must

submit a discharge application to the Secretary on a form approved

by the Secretary.”).

4 See 34 C.F.R. § 685.213(b)(7)-(8).

5 This estimate is based on the Department’s reporting that the 227,00

borrowers who matched through the SSA process and successfully

applied for TPD relief received $8.2 billion in discharges, or an

average of $36,123.35 per borrower. See supra note 2.

6 HEA § 437(a); 20 U.S.C. § 1087(a).

7 34 C.F.R. §§ 674.61 (Perkins), 682.402(c) (FFEL), 685.213 (Direct

Loan).

8 HEA § 437(a)(1); 20 U.S.C. § 1087(a)(1).

9 See 77 Fed. Reg. 66,088, 66,091-93 (Nov. 1, 2012).

10 HEA § 437(a)(2); 20 U.S.C. § 1087(a)(2).

11 See Press Release, U.S. Dep’t of Educ., “U.S. Department of

Education and U.S. Department of Veterans Affairs Team Up to

Simplify Student Loan Discharge Process for Disabled Veterans” (Apr.

16, 2018), available at: https://www.ed.gov/news/press-releases/

us-department-education-and-us-department-veterans-affairs-team-

simplify-student-loan-discharge-process-disabled-veterans.

12 See Press Release, U.S. Dep’t of Educ., “U.S. Department of

Education Acts to Protect Social Security Beneﬁts for Borrowers

with Disabilities” (Apr. 12, 2016), available at: https://www.ed.gov/

news/press-releases/us-department-education-acts-protect-social-

security-beneﬁts-borrowers-disabilities.

13 See U.S. Department of Education, Final Response to FOIA

Request No. 20-00411-F (Jan. 29, 2020), available at: https://www.

defendstudents.org/foia/disability#matchingagreements.

14 See Presidential Memorandum on Discharging the Federal Student

Loan Debt of Totally and Permanently Disabled Veterans (Aug. 21,

2019), available at: https://www.whitehouse.gov/presidential-actions/

presidential-memorandum-discharging-federal-student-loan-debt-

totally-permanently-disabled-veterans/.

15 See Michael Stratford, “Trump pledge to forgive disabled veterans’

student loans delayed — at Education Department,” Politico (Nov.

21, 2019), available at: https://www.politico.com/news/2019/11/21/

trump-disabled-veterans-student-loans-072750. We do not know

whether this determination was made by the Department of

Education or elsewhere in the executive branch.

16 See 84 Fed. Reg. 65,000 (Nov. 26, 2019), available at: https://www.

govinfo.gov/content/pkg/FR-2019-11-26/pdf/2019-25813.pdf.

17 Id. at 65,002.

18 20 U.S.C.A. § 1087(a)(2) (language added August 14, 2008).

19 20 U.S.C.A. § 1087(a)(1) (emphasis added) (language added July 1,

2010).

20 U.S. Dep’t of Educ., Ofﬁce of Inspector Gen., A06-80001, Improving

the Process for Forgiving Student Loans (June 7, 1999).

21 34 C.F.R. § 685.213(b)(7)(i).

22 Id.

23 34 C.F.R. § 685.213(b)(8). The regulatory text does not speciﬁcally

require reinstatement, but rather, in a section titled Borrowers

responsibilities after a [TPD] discharge, provides that, during the

monitoring period, the borrower must provide the Secretary with

the required information. The preamble to the 2012 rule states that

a borrower who does not provide the required documentation

(particularly income documentation) will have his or her loans

reinstated and will be required to resume payment on the loan. 77

Fed. Reg. at 66,097; see also FSA Website at https://studentaid.

ed.gov/sa/repay-loans/forgiveness-cancellation/disability-

discharge#postdischarge (“During the postdischarge monitoring

period, Nelnet will require you to submit documentation of your

annual earnings from employment on a form that Nelnet will provide.

If you don’t submit this form with the required documentation of your

income, your obligation to repay your loans or complete your TEACH

Grant service obligation will be reinstated.”). The Department further

explained that “a large proportion of discharged borrowers end up

with their loans reinstated because of failure to submit adequate

information during the post-discharge monitoring period.” 77 Fed.

Reg. at 66,119.

24 See Press Release, “Sen. Coons leads bipartisan effort to urge Trump

Administration to immediately discharge outstanding federal student

loans for permanently disabled Americans,” (Oct. 9, 2019), available

at: https://www.coons.senate.gov/news/press-releases/sen-coons-

leads-bipartisan-effort-to-urge-trump-administration-to-immediately-

discharge-outstanding-federal-student-loans-for-permanently-disable-

d-americans.

25 See Letter from Advocacy Groups to Sec. DeVos (Mar. 3, 2020),

available at: https://www.defendstudents.org/news/coalition-urges-

devos-to-provide-critical-loan-relief-to-350000-americans-with-

disabilities.

26 Cory Turner, “Letters Urge Betsy DeVos To Erase Student Loans

For Borrowers With Disabilities,” National Public Radio (March 3,

2020), available at: https://www.npr.org/2020/03/03/811170628/

letters-urge-betsy-devos-to-erase-student-loans-for-borrowers-with-

disabilities.

27 On March 27, 2020, Congress passed and President Trump signed

into law the Coronavirus Aid, Relief, and Economic Security Act (the

“CARES Act”), which suspended all student loan payments until

September 30, 2020. On August 8, 2020, President Trump issued

a memorandum directing the Department to extend CARES Act

student loan relief through December 31, 2020. On December 4,

2020, Secretary DeVos announced a further extension of the student

loan forbearance period to run through January 31, 2021. See Press

Release, U.S. Dep’t of Educ., “Secretary DeVos Extends Student

Loan Forbearance Period Through January 31, 2021, in Response to

COVID-19 National Emergency” (Dec. 4, 2020), available at: https://

www.ed.gov/news/press-releases/secretary-devos-extends-student-

loan-forbearance-period-through-january-31-2021-response-covid-

19-national-emergency.

28 5 U.S.C. § 553(b)(B). See also 20 U.S.C. § 1098a(b)(2) (“All

regulations pertaining to [Title IV of the HEA] . . . shall be subject to

a negotiated rulemaking . . . unless theSecretarydetermines that

applying such a requirement with respect to given regulations is

impracticable, unnecessary, or contrary to the public interest (within

the meaning ofsection 553(b)(3)(B) of title 5), and publishes the

basis for such determination in the Federal Register at the same time

as the proposed regulations in question are ﬁrst published.”); Nat’l

Educ. Ass’n v. DeVos, 379 F. Supp. 3d 1001, 1020 (N.D. Cal. 2019)

(discussing the HEA’s “good cause” requirement).

29 Final Regulations, Federal Perkins Loan Program, Federal Family

Education Loan Program, and William D. Ford Federal Direct Loan

Program, 77 Fed. Reg. 66088, 66091 (Nov. 1, 2012).

30 See Press Release, U.S. Dep’t of Educ., “U.S. Department of

Education Acts to Protect Social Security Beneﬁts for Borrowers

with Disabilities” (Apr. 12, 2016), available at: https://www.ed.gov/

news/press-releases/us-department-education-acts-protect-social-

security-beneﬁts-borrowers-disabilities.

31 84 Fed. Reg. 65,005-06.

32 See Clare Lombardo and Cory Turner, “Student Loan Borrowers

With Disabilities Aren’t Getting Help They Were Promised” National

Public Radio (Dec. 4, 2019) (explaining that, as of June 2019,

225,000 borrowers who had matched through the SSA process

had already defaulted on their loans, and many were having

their disability checks garnished), available at: https://www.npr.

org/2019/12/04/776058798/why-student-loan-borrowers-with-

disabilities-arent-getting-the-help-they-deserve; see also Nat’l

Council on Disability, National Disability Policy: A Progress Report

at 11 (Oct. 26, 2017) (“[P]eople with disabilities live in poverty at

more than twice the rate of people without disabilities.”), available

at: https://ncd.gov/sites/default/ﬁles/NCD_A%20Progress%20

Report_508.pdf.

33 20 U.S.C. § 1087(a)(1) (The Secretary may develop such safeguards

as the Secretary determines necessary to prevent fraud and abuse”

and “the Secretary may promulgate regulations to reinstate the

obligation of, and resume collection on, loans discharged under this

subsection. . .”) (emphasis added).

34 In December 2019, Congress added an “automatic income

monitoring” section to the HEA’s TPD provisions. See 20 U.S.C.

§ 1087(a)(3). The new section requires the Secretary to establish

and implement procedures to use IRS tax return information in

order to determine continued eligibility for a TPD discharge during

the monitoring period. The provision does not require a monitoring

period, but rather requires automatic income monitoring where

there is one. To the extent the monitoring period is not eliminated for

borrowers who apply for TPD relief based on a doctor’s certiﬁcation,

this new automatic monitoring provision would apply.

35 See Lombardo and Turner, supra note 32. According to a 2016

GAO Report: in ﬁscal year 2014, of the 62,303 borrowers that had

their loans reinstated, 61,074 of them (or 98%) were due to failure

to submit an annual income veriﬁcation form. The percentage

was the same in 2015. See GAO Report: “Social Security Offsets:

Improvements to Program Design Could Better Assist Older Student

Loan Borrowers with Obtaining Permitted Relief” at 35, Fig. 10 (Dec.

2016), available at: https://www.gao.gov/assets/690/681722.pdf.

36 The Department has taken such an approach in a number of other

cases. See, e.g., Final Regulations, Student Assistance General

Provisions, Federal Family Education Loan Program, and William D.

Ford Federal Direct Loan Program, 80 Fed. Reg. 67,204, 67,205 (Oct.

30, 2015) (designating for early implementation regulations speciﬁc

to the REPAYE repayment plan); 81 Fed. Reg. 75,926, 75,927 (Nov. 1,

2016) (designating the automatic closed school discharge regulation

for early implementation).

37 84 Fed. Reg. at 65,006.

38 5 U.S.C. § 801(a)(3)(A).

39 5 U.S.C. § 808.

40 84 Fed. Reg. at 65,006 (“As stated above, the Department has found

good cause to issue this rule without notice and comment rulemaking

and thus we are not including the 60-day delayed effective date in

this rule.”).

41 Because SSA has already gone through its process to designate

these borrowers as “Medical Improvement Not Expected,” the risk of

fraud in the system is low. SSA’s procedures and criteria for setting

a MINE designation are available at https://secure.ssa.gov/apps10/

poms.nsf/lnx/0426525045. See also 77 Fed. Reg. at 66,091-93

(describing SSA’s MINE designation process and noting that such

designations are reviewed by SSA no less frequently than once every

seven years and no more frequently than once every ﬁve years).

There is no need for the Department (let alone borrowers) to shoulder

the extensive burden and cost of imposing even more hurdles on

borrowers SSA has already found qualify.

viii

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