A final regulation issued on Halloween has reshaped the Public Student Loan Forgiveness program
Interview transcript
Terry Gerton You know, it turns out that not everything was shut down during the shutdown. The Department of Education issued a final regulation on Halloween that picked up on a March 7 executive order related to the public service loan forgiveness program. Tell us about what this new regulation does.
Randall Thomas That’s right, Terry. The regulations finalized proposed regulations that were issued in August and that implement that executive order. And that executive order directed Education to propose revisions to the PSLF regulations to ensure the definition of public service excludes organizations that engage in activities that have a substantial illegal purpose. That executive order stated that it was the policy of the administration that individuals employed by organizations whose activities have a substantial legal purpose shall not be eligible for the PSLF program. Education amended the regulations to provide that a qualifying employer for purposes of the program does not include organizations that engage in these specific enumerated activities in the regulation such that they have a substantial illegal purpose. Qualifying employers, for people who are familiar with the program or those who aren’t, generally include federal, state, local government agencies, Section 501(C)(3) organizations, and certain other entities. And these regulations were issued after … the PSLF statute was enacted in 2007 and first became effective in 2009. And those regulations have been amended seven times since they were first promulgated. The new regulations establish that to be considered a qualifying employer, an organization must not engage in an illegal activity such that it has substantial illegal purpose. And with that language and that standard, Education is effectively adopting the IRS’s illegality doctrine in these regulations. Education states that the IRS’ use of the doctrine is a basis for Education to issue the regulations. Education also listed several activities deemed to reflect a substantial illegal purpose, which we’ll probably cover in a few minutes, and the proposed regulations received nearly 14,000 comments [and] were generally finalized without substantive changes.
Terry Gerton I think most people would agree that agencies that are engaging in illegal behavior ought not to be subject to loan forgiveness. What is new about this regulation, especially when it comes to defining the illegal activities?
Randall Thomas Yeah, so historically, like we mentioned just a minute ago, Terry, this was a status test and not a conduct test by the Department of Education. You could look to a Section 501(C)(3) organization and see that the IRS had made a determination with respect to that exempt status. And the IRS separately employs an illegality doctrine, but now the Department of Education has said that it will also apply the illegality doctrine based on a preponderance of the evidence to determine whether an organization is operating for a substantial illegal purpose. And here they define certain illegal activities as indicative of having a substantial illegal purpose. Those activities were also all noted in the executive order from March of this year, and they include aiding or abetting violations of federal immigration laws, supporting terrorism, the use of puberty blockers or sex hormones for minors in violation of federal or state law, engaging in the trafficking of children to another state for purposes of emancipation from their lawful parents in a violation of federal or state law, engaging in a pattern of aiding and abetting illegal discrimination, and engaging in a pattern of violating state laws, which is defined as a final non-default judgment by a state court of trespassing, disorderly conduct, public nuisance, vandalism, or obstruction of highways.
Terry Gerton Well those are pretty specific. How will the Department of Education actually determine if an agency or an organization engages in those activities? What will they look at?
Randall Thomas So the employer disqualification process here requires Education to find that an employer has a substantial illegal purpose by a preponderance of the evidence after weighing the employer’s illegal conduct and narrowly focusing on only the illegal conduct enumerated in the regulation. The preamble to the regulation notes that a determination by Education regarding illegality only represents Education’s conclusion that the organization is not a qualifying employer and does not represent a determination by the IRS regarding tax exempt status. Education will determine that a qualifying employer violated the applicable standard when it receives an application in which the employer fails to certify that it did not participate in activities that have a substantial illegal purpose, or when it otherwise determines that a qualifying employer engaged in these activities unless Education approves a corrective plan signed by the employer. There’s an employer reconsideration process that gives employers the right to submit additional information and seek review and determinations. That process is aimed at providing due process to ensure that Education considers all relevant information prior to taking action to remove eligibility and to ensure that employers will be given an opportunity to respond, except in cases where there’s conclusive evidence that the employer engages in activities such that it has an illegal purpose, substantial legal purpose, rather. And Education presumes that the following evidence is conclusive. That includes a final judgment by a state or federal court whereby the employer is found to have engaged in illegal activities such that it has a substantial illegal purpose, a plea of guilty or no contest, whereby the employer admits to having engaged in illegal activities that have a substantial illegal purpose, or pleads no contest to allegations that it engaged in illegal activities with a substantial illegal purpose, or a settlement that includes admission by the employer that engaged in illegal activities that have a substantial illegal purpose. It provides that nothing in the determination process shall be construed to authorize Education to determine an employer has a substantial illegal purpose based upon the employer or its employees exercising their First Amendment rights or any other rights protected under the Constitution. And Education notes that even without such explicit references, the regulation could not be enforced in a manner that contravenes the First Amendment and that lawful activity will not disqualify an organization, no matter how controversial or unpopular it may be.
Terry Gerton I’m speaking with Randall Thomas. He’s a partner at Morgan, Lewis and Bockius. All right, that’s a lot of legal speak about the requirements. What if any new responsibilities or risks does this create for the public service organizations who might have borrowers participating in the program?
Randall Thomas Yeah, so two impacts here, the qualifying employers and also the borrowers, of course. The employers now bear the responsibility of affirmatively certifying that they are not engaged in activities with a substantial illegal purpose. They face disqualification now based on this new preponderance of the evidence standard, and certain things like judgments, no contest pleas, and settlements are treated as conclusive evidence that the employer engages in activities such that it has a substantial illegal purpose. Employers will want to engage counsel to think about how the PSLF regulations may apply and whether the employer’s activities expose it to any PSLF disqualification risk under the new regulations. And, you know, you probably want to do that with an eye toward these activities that the regulations say are indicative of a substantial legal purpose. There’s also the borrower impact, and thankfully these regulations don’t have an effective date until July 1, 2026. So you do have some headway — runway to figure out how they’re going to apply to your employer. For borrowers, the regulations will remove PSLF eligibility for individual borrowers during periods of employment by organizations that have been disqualified. Where an employer is deemed to have engaged in activities that breach federal or state law, affected borrowers won’t receive credit toward loan forgiveness for months worked after the determination date of ineligibility, but borrowers will receive full credit for work performed until the effective date of Education’s determination that the employer no longer qualifies. And under the regulations, Education is required to notify borrowers of a qualifying employer’s status. If the qualifying employer is at risk of becoming or becomes ineligible to participate in a PSLF program, the borrower cannot request reconsideration of a determination by Education that resulted in the employer losing status because the employer has a substantial illegal purpose.
Terry Gerton Are any of these new regulations being tested in legal cases?
Randall Thomas There are several cases that have been filed so far challenging the regulation.
Terry Gerton And what is the status of any of those? Can you derive any sense of where this might go in the future?
Randall Thomas I can’t opine right now. I don’t think that any — well, I think that it’s too premature. These regulations were just finalized a little bit over three weeks ago. And I don’t know that there’s been any action on these cases.
Terry Gerton What do you think this signals for the future then of the Public Service Loan Forgiveness Program? Do you think the authorities will continue to be tightened and the eligibility requirements strengthened?
Randall Thomas Yeah, Terry, I have no expectation about whether they will or won’t be tightened any further, but the new rule is clearly designed to tighten PSLF standards, and the administration through the executive order and Education in the preamble to the regulations, they say as much. The preamble to the regulation discusses at length the aim of the regulation in ensuring that taxpayer dollars are not misused and strengthening accountability and enhancing program integrity. The preamble states that the regulations will protect hardworking taxpayers from shouldering the cost of improper subsidies granted employees of organizations that undermine national security — and I’m quoting the regulation here — and American values through criminal activity. I can’t speak to the policy or the balance between accountability and access to forgiveness. I will note that Education notes in the preamble to the regulation that it disagrees with [the] assertion that the rule will have a significant macroeconomic effect on labor markets in education, health care, social services. They stated that they found no basis to conclude widespread effects would be likely and that they expected most organizations to voluntarily comply with the rule, such that Education anticipates that it will take action to remove eligibility for less than 10 organizations per year.
The post A final regulation issued on Halloween has reshaped the Public Student Loan Forgiveness program first appeared on Federal News Network.

© The Associated Press


















