Third Time's The Charm? – U.S. Department Of Education Issues Additional Q&A On Implementation Of 2016 'Borrower Defense To Repayment' Regulations

The U.S. Department of Education (ED) has issued additional guidance in the form of several supplemental "questions and answers" related to implementation of ED's 2016 "borrower defense to repayment" regulations (BDTR Regulations). The BDTR Regulations took effect as of October 16, 2018, in accordance with a court's decision in related litigation.

This most recent guidance, which is dated June 19, 2019, is the third time ED has provided institutions some instructions about how to comply with the BDTR Regulations. Under the BDTR Regulations, institutions are required to report certain events to ED and ED is authorized to reassess an institution's compliance with ED's financial responsibility standards when certain events occur. For a detailed summary of the BDTR Regulations, please see our previous alert. For information about ED's March 15 Electronic Announcement, please see our related alert. Similarly, for information about ED's June 3 Electronic Announcement containing a first set of questions and answers, please see our related alert.

ED's newest guidance expands on the June 3 questions and answers by embedding additional items into the attachment to that Electronic Announcement - so institutions may not be aware that the list of questions and answers has grown to address the following topics:

Format of a report about the occurrence of a reportable event:ED explains that currently there is no template, and therefore institutions' submissions "may vary based upon the facts and circumstances of the individual events." Nonetheless, ED provides examples of the general information institutions might include in their notifications, including: institution name; Office of Postsecondary Education identification (OPEID); event type; event date; status of event; and point of contact at the institution for any follow-up inquiries from ED. Confidentiality considerations:ED encourages institutions to indicate whether the information being submitted is confidential and/or proprietary and to update ED if the confidential and/or proprietary status of the information changes. ED states that an institution may choose to send its report to ED "in an encrypted format." Suggested information to include in notice about a reportable event:Having acknowledged that institutions' submissions may vary based upon the facts and circumstances, ED provides some guidance about information that might be provided along with notice of various types of reportable events...

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