Session 9

Lender and School Relationships Pamela Moran Office of Postsecondary Education

• Legislative Action and More – Federal and State Enacted and Pending – Private Education Loans - Other Activities • 2006-2007 Negotiated Rulemaking • Developing Best Practices • Administrative - “Dear Colleague” Letters – Compliance Issues



Legislative Action
Federal Legislation –HEA Reauthorization (S.1642) Passed Senate 7/24/07 –Student Loan Sunshine Act (S. 486; H.R. 890*) –Student Loan Accountability and Disclosure Reform Act (S. 1262)
* passed House; awaiting Senate action


Legislative Action
• Federal Legislation –Dodd/Shelby “Private Student Loan Transparency and Improvement Act” - Draft passed by Senate Banking Committee


Legislative Action
• Federal Legislation –“Student Financial Aid Data Privacy Protection Act” (S.1401) –Durbin Bill (S. 1561) permitting private education loan bankruptcy discharge after 5 years (S.1642)


Student Loan Sunshine Act (HR 890)
• HR 890 passed House 413-3 in June 2007, added in different form to Senate HEA bill, S. 1642 • No gifts from lenders to schools worth more than nominal amount • No payment of travel expenses for service on advisory committees

Student Loan Sunshine Act (HR 890) • Lenders staffing during peak periods would be eliminated • Requires Secretary to develop format for reporting loan terms and conditions


Student Loan Sunshine Act • FFELP Preferred lender lists must include minimum of 3 non-affiliated lenders • List must clearly and fully disclose basis for school selection of lender • Schools must advise students of right to choose any lender.

Student Loan Sunshine Act • “Arrangements” between schools and lenders must be disclosed • Arrangements with school product branding prohibited


Student Loan Sunshine Act
• Direct-to-Consumer (DTC) private lenders must: - prominently disclose availability of lower cost federal student loans - disclose interest rate calculation on private loans - notify school of possible private loan


S. 1642 Disclosures to Borrowers (Senate)
By school: extensive loan information including information on interest rates, repayment plans, terms and conditions of loans, availability of borrower benefits and take-up rates, collection practices and fees, and other information.” Information based on report by lenders provided to Secretary.

S.1642 Disclosures to Borrowers (Senate)
Lenders: repayment benefit information on automatic deduction, on-line, and other repayment methods. Must include details on conditions of receipt and loss of benefits and examples of the impact of interest rate reductions on borrower’s repayment amount and time in repayment.

S.1262 Student Loan Accountability and Disclosure Reform Act (Senate) • School must ensure choice of lender - no assigning lender to first-time borrower - no unnecessary processing delays • School may not designate preferred lenders but may provide guidance on specific lenders to assist in selection

S.1262 - SLADRA (Senate)

• School must provide prominent disclosure on lender choice and criteria for providing lenderspecific guidance • Lenders for which school provides guidance must disclose loan sale agreements • Ban on gifts to school except of nominal value

S.1262 - SLADRA (Senate) • Ban on lender providing consulting services to schools, or paying someone to provide services except for exit counseling • Ban on lender payments – prizes, stock, travel and entertainment, IT equipment at below market value, service on advisory board or lendersponsored groups • School-as-FFEL Lender terminated June 30, 2008

Private Student Loan Transparency and Improvement Act (Senate)

• Dodd (D-CT)/Shelby (R-AL)Bill approved by Senate Banking Committee unanimously –Amends Truth-in-Lending Act • Amendment planned but was not offered to Senate HEA bill • House may include revised version in HEA bill

Private Student Loan Transparency and Improvement Act (Senate)

• Definition covers institutional loans and other private education loans –Anything that can be used for postsecondary educational costs

Private Student Loan Transparency and Improvement Act (Senate)

• Main Feature: Disclosures, Disclosures, Disclosures • Advice to borrowers to seek federal student aid first


Private Student Loan Transparency and Improvement Act (Senate)

• Prohibitions on inducements like S. 1642 for FFELP – nothing permitted in exchange for preferential treatment or gifts but expense reimbursement for advisory board service OK


Private Student Loan Transparency and Improvement Act (Senate)

• Civil liability for inadequate disclosures one year after repayment begins – could be years after disbursement


Private Student Loan Transparency and Improvement Act (Senate)

• 30-day interest rate lock with right to cancel • 3-day right to cancel after consummation but before disbursement • Prepayment fees prohibited

Private Student Loan Transparency and Improvement Act (Senate)

• 16 forms of disclosure on terms and conditions at application or solicitation, approval and consummation • Financial literacy programs encouraged • Study of underwriting practices by GAO authorized with focus on “non-individual information”

State Legislation - New York’s SLATE Act • Effective November 2007 First and only state law passed to date • Providing a gift or service to a school or school employee is prohibited if offered in exchange for some advantage. –Print jobs for schools prohibited

State Legislation - New York’s SLATE Act -Meals, other than refreshments at bona fide training sessions prohibited –Staffing of school’s financial aid office prohibited


State Legislation - New York’s SLATE Act • Something of value in exchange for an advantage can be an explicit written or oral agreement or take the form of a "wink and a nod.“ –Intent to gain advantage is not necessary for a violation to occur

Other Activities • NY Attorney General reviews schools and lenders leading to: - signed code of conduct agreements with some schools and several top FFEL lenders - payment into an education fund to support borrower education

Other Activities
• Scrutiny expanding outside of financial aid office • State AG examination of school athletic department sponsorship arrangements with lenders • Credit card marketing to students through schools or school-affiliated organizations (e.g., alumni association)


2006-07 Negotiated Rulemaking


2006-2007 Negotiated Rulemaking
• Four negotiating committees were established:
–Accreditation –General Provisions –Academic Competitiveness & National SMART Grants –Loans

2006-2007 Negotiated Rulemaking Loans Committee
Major Issues
• Preferred Lender Lists • FFEL Loan Certification • Lender and GA Prohibited Inducements • Use of Eligible Lender Trustees by FFEL Schools  1st Meeting – December 2006  2nd Meeting – February 5-7, 2007  3rd Meeting – March 12-14, 2007  4th Meeting – April 18-20, 2007


Loans Regulation


• NPRM: June 12, 2007 • Comment Period Ended: August 13, 2007 • 241 Comments Received • Final rules: November 1, 2007 • Effective date: July 1, 2008 with selected items for voluntary early implementation

LOANS NPRM • “No Consensus” on NPRM • NPRM reflected what ED heard and deliberations of Secretary’s Loan Task Force


Use of Eligible Lender Trustees (ELTs) by FFEL Schools

• Lender definition in §682.200 amended to prohibit new ELT relationships with schools on/after September 30, 2006 • §682.602:HERA FFEL school lender limits applied to school ELT arrangements 1/1/2007

School FFEL Loan Certification
• §682.603 (f) reorganized and amended • FFEL schools May Not: - Refuse/Delay certification based on choice of lender or GA - Assign lender to first-time borrower in award packaging or through other methods

School FFEL Loan Certification
• Engage in a pattern or practice of discrimination to deny FFEL access • Refuse to certify or certify a reduced amount except on a case-by-case, documented basis with reason provided to borrower in writing

School Preferred Lender List in FFELP

Background: • School’s Option • Allowed But Never Regulated • Evolution: –Default prevention –Simplification E-transmission –Competition –Proliferation of borrower benefits

School Preferred Lender List in FFELP

Regulations require: • List must contain at least 3 unaffiliated lenders • “Unaffiliated” means: –No common control or ownership –No common directors, trustees, or general partners

School Preferred Lender List in FFELP

§682.212 requires a school to: • Disclose method/criteria for lender inclusion on the list • Provide comparative information on borrower benefits offered by listed lenders –Department to provide model format for school use

School Preferred Lender List in FFELP

• Include prominent statement advising borrowers that use of the school’s preferred lender not required • Update at least annually


School Preferred Lender List in FFELP

Under §682.212, a school MUST NOT: • Include lenders that were solicited and provided school or school- employee benefits, but may include lenders solicited for best borrower benefits


School Preferred Lender List in FFELP

Under §682.212, a school MUST NOT: • Assign lender to first-time borrower • Cause any unnecessary delays in certification for borrowers not using one of the school’s preferred lenders

Preferred Lenders
• Publications, scripts and staff training should comply • Violations could bring sanctions • Does not apply to FFEL/Direct Loan choice


Schools Not Using Preferred Lender Lists

• All FFEL loan certification rules apply • School may identify lenders that have made loans to school’s students and parents in the past • No statement endorsing or recommending a lender

Schools Not Using Preferred Lender Lists

• Provide “neutral” presentation of factors to consider when selecting a lender - good borrower benefits - good customer service - limits on sale of loans, if important to customer

Schools Not Using Preferred Lender Lists

- prior business dealings of family or friends on other consumer loans - consumer complaints to State AG or BBB - lender’s default rate as reflection of servicing

Schools Not Using Preferred Lender Lists

• Encourage web-based searches • Use the simple statement “You must select your lender. The aid office cannot do so for you.”


FFEL Program Lender and GA Prohibited Inducements

Background: • Enacted as part of 1986 Amendments to HEA • 1998 Amendments to HEA allowed lenders and GAs to provide assistance to schools comparable to what Secretary provides to Direct Loan schools

FFEL Program Lender and GA Prohibited Inducements

• Affects lender eligibility and participation and GA participation • Current regulations primarily reflect statutory provisions


Prohibited Inducements -- Eligible Lenders CANNOT:
• Offer, directly or indirectly, points, premiums, payments or other inducements to any school to secure FFEL applications, loan volume or placement on a preferred lender list • Pay referral or processing fees to another lender or other party • Pay conference or training registration, transportation and lodging costs for school or school-affiliated organization employees • Pay entertainment expenses related to lender-sponsored activities for employees of school or school-affiliated organization • Undertake philanthropic activities in exchange for FFEL applications, volume or placement on lender list • Provide staffing services to a school except on a shortterm, emergency basis

Loans Regulations FFEL Issues


Loans Regulations FFEL Issues
Prohibited Inducements -- Eligible Lenders MAY:
• Assistance comparable to that provided to a DL school by the Secretary • Student aid/financial literacy outreach- no inperson counseling • Meals, refreshments and receptions, reasonable in cost, in conjunction with meetings, training or conferences if provided to all participants • Toll-free numbers for FFEL info/etransmission • Reduced origination fees • Reduced interest rates • Payment of Federal default fees • Borrower benefitsrepayment incentive • Items of nominal value

FFEL Program Prohibited Inducements – GAs

• Same as lenders, except GAs permitted to pay: -- travel and lodging expenses related to school employee service on GA advisory or governing board


FFEL Program Prohibited Inducements – GAs

-- reasonable costs of meals and refreshments for GAsponsored training, workshops, and forums permitted


Best Practices


Best Practices – Things to Consider • Examine what’s out there and whether voluntary or required: - school ethics rules or codes of conduct – look at your contract - school private agreement with State attorney general - State ethics rules for public employees

Best Practices – Things to Consider • Examine what’s out there and whether voluntary or required: - State laws governing school practices –all schools - Professional Association/ Accrediting Agency best practices or recommended codes of conduct - Federal title IV regulations

Best Practices – Things to Consider • When applying legal requirements in the same area from multiple sources: - Default to the strictest requirement and build your practices around that • Assume gift or service is NOT permitted when in doubt until confirmed otherwise

Best Practices – Things to Consider • Review school web-sites and other published materials for “neutrality” in loan and lender information unless information supports preferred lender list • Examine your existing practices with lenders, guaranty agencies, and other vendors for possible conflicts of interest

Best Practices – Things to Consider • Avoid appearance as well as reality of conflicts of interest • Document your decisions • Talk to your colleagues at other schools – what are they implementing and why?

Best Practices – Things to Consider • Assure adequate staff training down to work-study level and provide clear reference materials for their use • Open a dialogue with your student body and their parents


Recent Letters & Announcements


Dear Colleague Letters & Electronic Announcements  Dear Colleague Letters  GEN-06-21- Third Higher ED Extension Act – ELT Relationships with Schools (12/1/06)  GEN-07-01- Borrower Choice of FFEL Lender (3/30/07)  GEN-07-05-Releasing Student Information (9/7/07)

Dear Colleague Letters & Electronic Announcements Electronic Announcement  FFEL Prohibited Inducement Guidance (9/14/2007)

 Secretary Spellings wrote to all institutions and lenders urging them to assure students and parents that we have their best interests at heart in providing competitive student loans

Compliance Update


Oversight Activities
• ED inducement reviews of selected schools and lenders • Updating of current Office of Inspector General (OIG) audit guides for schools and lenders to include inducements and borrower choice of lender as required review areas

Oversight Activities
• ED recommendation to GAs to incorporate inducements as area of GA review of schools and lenders • Introduction of ED inducements workgroup to investigate and follow-up on inducement-related complaints

Oversight Activities
• Ongoing ED analysis of institutional loan volume by lender as possible indicator for follow-up with schools and lenders • Ongoing analysis of Ombudsman Office complaints for trends to inform oversight activities

NSLDS Access
 Web access to the National Student Loan Data System (NSLDS) was suspended for some Title IV student aid program participants on April 17.  To ensure privacy is protected and that access to NSLDS is used only for authorized purposes.  Web search now requires SSN, Name, and DOB.  Ability for schools to add new users reinstated.  Guaranty agency web access reinstated.  Some lender web access reinstated.  State grant agency access reinstated.  Lender ELT access still on hold.


Contact Information
We appreciate your feedback and comments. We can be reached at:
• Phone: (202) 502-7732 • Email: • Fax: (202) 502-7873