With the Aug. 7, 2023, Fifth Circuit Court of Appeals decision to issue a nationwide injunction in the case of Career Colleges and Schools of Texas v. Cardona, protocols for responding to borrower defense claims are now top of mind for many. The court’s move prevents the U.S. Department of Education (ED) from enforcing the latest version of its borrower defense to repayment (BDR) rule, introduced in 2022.
Despite the injunction, the ED continues to process BDR claims under the June 2022 settlement reached in the Sweet v. Cardona litigation. Simultaneously, it is responding to BDR claims under the already existing rule.
The evolving landscape over the process for handling BDR claims underscores the need for legal professionals to take proactive measures. By developing robust internal protocols, they can ensure they are prepared for any adjustments in the rules or litigation outcomes.
These protocols should consider elements such as timely response to claims, appropriate adherence to ED guidelines under both the current and possible future versions of the BDR rule, and other variables introduced by ongoing legal challenges.
The development of these strategies would greatly benefit from the input of the wider legal community, where sharing best practices and lessons learned can foster a robust and uniform response to BDR claims. As the landscape continues to change, keeping open lines of communication and remaining adaptive to new rulings will be keys to effective protocol development.