6
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 Borrowers
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 theSecretarydetermines that
applying such a requirement with respect to given regulations is
impracticable, unnecessary, or contrary to the public interest (within