oversight

Servicemembers Civil Relief Act- Date Issued: 02/29/2016 PDF (1.44M)

Published by the Department of Education, Office of Inspector General on 2016-02-29.

Below is a raw (and likely hideous) rendition of the original report. (PDF)

                              UNITED STATES DEPARTMENT OF EDUCATION
                                      OFFICE OF INSPECTOR GENERAL


                                                                                                    THE INSPECTOR GENERAL




February 29, 2016



The Honorable Patty Murray      The Honorable Elizabeth Warren                               The Honorable Richard Blumenthal
United States Senate            United States Senate                                         United States Senate
154 Russell Senate Office Bldg. 317 Hart Senate Office Bldg.                                 706 Hart Senate Office Bldg.
Washington, D.C. 20510           Washington, DC 20510                                        Washington, DC 20510



Dear Senator Murray, Senator Warren, and Senator Blumenthal:

Thank you for your August 4, 2015, letter requesting that the U.S. Department of Education
(Department) Office of Inspector General conduct an independent examination of the adequacy and
accuracy of the Department's review of student loan servicers' compliance with the Servicemembers
Civil Relief Act, specifically its requirement to provide eligible servicemembers with an interest rate
reduction on certain Federal student loans. The enclosure to this letter provides the results of our
review.

If you have any questions or if you need any additional information, please do not hesitate to contact
me directly at (202) 245-6900 or have a member of your staff contact our Congressional Liaison,
Catherine Grant, at (202) 245-7023.

Sincerely,




Kathleen S. Tighe
Inspector General



Enclosures

cc: 	The Honorable Lamar Alexander, Chairman, Committee on Health, Education, Labor, and
      Pensions, United States Senate
      Dr. John King, Acting Secretary, U.S. Department of Education




                                     400 MARYLAND AVENUE, S.W., WASHINGTON, DC 20202· 15 10

                    Promoting the efficiency, effe ctiveness, and integrity of the Department's programs and operations.
                                    Servicemembers C ivil Relief Act

Congressional Request

On August 4, 2015, Senators Warren, Murray, and Blumenthal requested that the O ffi ce of Inspector
General conduct an independent examination of the adequacy and accuracy of the Department of
Education's (Department) reviews of student loan servicers' compliance with the Servicemembers Civi l
Re lief Act (SCRA) requirement to provide eligible servicemembers with an interest rate reduction on
certain Federal student loans. Concerns were raised about the Department's conclusion contained in a
May 26, 2015, press release that " in less than I percent of cases, borrowers were incorrectly denied the
6 percent interest rate cap required by the laws." Along with the request, we were provided an A ugust
2015 Staff Analysis Report critiquing the SCRA program reviews that the Department performed.

Work Performed

To respond to this request, we reviewed the Staff Analysis Report, obtained and reviewed the SCRA
program reviews that the Department performed, obtained and reviewed supporting documentation, and
interviewed Department officials involved in plann ing and conducting the program reviews and preparing
the May 20 IS press release. We did not conduct this review as an audit or inspection.

Summary ofR esults

We identified flaws in the Department's sampling design that resulted in the Department testing few
borrowers eligible for the SCRA benefit, errors in the program reviews it conducted, and inconsistent and
inadequate corrective actions for the errors it identified for the period reviewed. As a result, the press
release of May 26, 20 I 5, is unsupported and inaccurate. In response to the results of our review, the
Department stated that it was a management decision to not require further corrective actions for periods
reviewed due to lim ited servicing errors identified and that the decision was not primarily based on a
statistical analysis. To address the issues with servicemembers' SCRA benefits, the Department designed
new procedures that, if properly implemented, should provide for all eligible borrowers to receive the
SCRA benefit as of July 2014.

Background

Congress enacted the SCRA in December 2003 as a modernized version of the Soldiers' and Sailors'
Civil Relief Act of 1940. The SCRA, among other benefits, provides for an interest rate cap of 6 percent
for active duty servicemembers on certain loans, including mortgages, credit cards, and automobiles
acquired before active duty status. In 2008, an amendment to the Higher Education Act of 1965 provided
for the SCRA interest rate cap on Federal student loans meeting the requirements of the SCRA.

According to the SCRA, to receive the 6 percent interest rate cap, the loan must have been made before
the servicemember was called to active duty; the active duty servicemember must also provide the
creditor a written notice of the servicemember' s eligibility fo r the interest rate cap and a copy of the
service member's military orders. Under the SCRA, the Secretaries of each mi litary service and the
Secretary of Homeland Security have the primary responsibility for ensuring that servicemembers receive
information on their SCRA rights and protections.
Department ofJ ustice Complaint Filed

In May 2014, the Department of Justice filed a complaint against Navient 1 alleging multiple violations of
the SCRA, including that Navient failed to provide servicemembers the 6 percent interest rate to which
they were entitled under SCRA for both private and Federal student loans. The Federal student loans
Navient serviced included Federal Family Education Loans, Federal Direct Loans, and Federal Family
Education Loans held by the Department. In September 2014, Navient entered into a consent order that
required it to correct its practices going forward and make eligible servicemernbers with private and
Federal student loans whole from the point they became eligible for the SCRA interest rate cap in the past
and to compensate borrowers for other violations of the SCRA. 2

Federal Student A id R eviews Initiated

In response to the Department of Justice complaint, the Secretary of Education announced that the
Department wou ld review each of the four Title IV Additional Servicers (TIVAS) 3 for compliance with
their contracts and the requirements of the SCRA. In June 2014 , Federal Student Aid's (FSA) Financial
Institution Oversight Service (FlOS) began its program review ofNavient. The program reviews of the
remaining three TIVAS began in July and August 2014. The objective of the reviews was to determine
whether borrowers of eligible Federal Fami ly Education Loans and Direct Loans received the benefit of
the 6 percent interest rate cap provided by the SCRA in accordance with applicable status and the
Department's regulations and guidance. The purpose and scope of the reviews were to

    • 	 determine whether the TIYAS complied with all Department statutes, regulations, and guidance
        in determining whether borrowers were eligible to receive the interest rate cap provided by the
        SCRA and
    • 	 ensure that eligible borrowers who met the requirements for the interest rate cap under the SCRA
        were granted the benefit on all of their eligible Federal student loans.

In September 2014, the Department decided to perform a second review ofNavient,4 and FIOS conducted
the review in January 2015. FIOS modified and strengtl1ened the procedures for identify ing the universe
of potential eligible borrowers and expanded the sample size designed fo r testing to 300. FSA a lso


1
  The complaint and related September 2014 consent order covered Navient (a company that services loans for the
Department, as a T itle IV Additional Servicer, and other entities), and Sallie Mae Bank (a company that holds
r rivate student loans and Federal Family Education Loans).
  In May 20 15, the Department ofJustice disclosed that 77,795 borrowers would receive benefits under a settlement
with Navient to resolve allegations ofSCRA violations. The Department ofJustice later disclosed that the
settlement included 18, 191 borrowers with Department-owned loans serviced by Navient. We confirmed with
Justice that it does not have data showing which of the three types of SCRA violations a lleged in its complaint
occurred with respect to a servicemembers' Department-owned loans. All servicemembers receiving benefits under
the settlement had military service dates that qualified them for the 6 percent interest rate cap and had a military
code in Navient's computer system. According to the consent decree implementing the settlement, the parties
agreed that, to resolve the matter efficiently and expeditiously, compensation Navient provides under the settlement
may go beyond the SCRA benefits and may be to servicemembers who may not have been eligible for SCRA
benefits. As a result of the information we received from Justice, we concluded that we could not use the Justice
data to assess the adequacy and accuracy ofthe Department's program reviews.
3
  The four T IVAS are Navient, Pennsylvania Higher Education Assistance Authority, Great Lakes, and Nelnet.
4
  The Department did not make the results of the first Navient review public, and neither the Department' s nor our
conclusions were based on the sample included in the first Navient review.

                                                         2

engaged a contractor, Ernst & Young, to review the same sample of loans serviced by Navient and to
corroborate the FIOS review.

Limitations on the Universe FIOS Used in Its Program Reviews

For its reviews of Pennsylvania Higher Education Assistance Authority, Great Lakes, and Nelnet, FIOS
relied on data in the National Student Loan Data System to identify potentially eligible SCRA borrowers.
This approach identified loans or borrowers in a military deferment or grace period status5 with an interest
rate exceeding 6 percent. FIOS used military deferment and grace status to identify potentially eligible
borrowers because the National Student Loan Data System did not have information on borrowers
requesting the SCRA benefit. FIOS did not attempt to determine whether the TIVAS had information in
their own servicing systems that it could have used to identify a complete uni verse of military borrowers
who had requested the SCRA benefit, which may have allowed for a better estimate of the extent of
compliance by the TIV AS. Instead, FIOS relied on the National Student Loan Data System, which
restricted its universe to only borrowers in a military deferment or grace period.

For the second Navient program review, FIOS used the results of a match with the Defense Manpower
Data Center, which is a Department of Defense database, to identify potentially e ligible servicemembers.
The match identified active duty servicemembers and the time periods of active duty.

Sampling Methodology Flaws

FIOS designed and used what is called an " acceptance" sampling methodology to evaluate three of the
TIVAS for compliance with the SCRA requirements. This type of sampling establishes a threshold for
drawing conc lusions concern ing a population. If the number of errors found in the sample is below the
established threshold, then the population is deemed acceptable. If the number of errors found in the
sample is above the threshold, the population is rejected. 6 For example, if an acceptance sample were
taken from a shipment, the results of the inspection would be used to decide whether to accept or reject
the entire shipment. The reported sampling design was based on statistically valid random samples of
99 loans, representing 99 distinct borrowers, and established a threshold that if FIOS identified no
instances of noncompliance during testing, FIOS would conclude that the servicer met the population ' s
                                                                          7
tolerable deviation rate of 3 percent or less, with 95 percent confidence. Therefore, the FIOS sampling
design defined compliance with SCRA as deviation rates up to 3 percent. Under the acceptance sampling
design, when FIOS found incorrect denials or other instances of noncompliance, FIOS could not estimate


5
  Military grace periods and deferment periods are available for servicemembers for Federal loans. For subsidized
loans, during these periods, the borrowers do not make payments on their loans and interest does not accrue on the
loan balance. For unsubsidized loans, the borrower has the option to defer payments on the loans; however, interest
does accrue.
6
  The Government Accountability Office's guide, "Using Statistical Sampling," states that acceptance sampling is a
variation of attribute sampling, but it does not permit the estimation of the rate of occurrence of the deficiencies.
Acceptance sampling provides us with the decision of whether to accept or reject a specific population.
7
  FIOS tested whether the TIV AS complied in four areas: (I) granting SCRA benefits, (2) denying SCRA benefits,
(3) using the correct active duty military service dates, and (4) adjusting accounts based on service dates. The
reviews for the four servicers covered periods through April or May 2014 and were designed to test servicer
compliance with the requirements in place at the time, which required a servicemembers to request the SCRA
benefit and provide supporting documentation.

                                                          3

the extent of noncompliance by the TIVAS ; under its approach, FIOS should have " rejected" the
population if noncompliance in the sample exceeded 3 percent. Therefore, the program reviews were not
designed to form statistical estimates for the percentage of eligible applicants incorrectly denied the
SCRA benefit, but were designed to provide information on areas of noncompliance for management to
address through corrective actions. We determined that FSA did not consult with or use a statistician to
assist with designing the sample it used in its program reviews.

Sampling Errors

We identified sampling errors with the FIOS program reviews of all four TN AS. Examples ofthe errors
include the fo llowing.

    • 	 The samples for 3 program reviews were not random for either loans or borrowers because FIOS
        selected cases from a list of servicing actions. For each of these program reviews, FIOS selected
        the samples from a universe comprising National Student Loan Data System records of military
        deferments and military grace for borrowers. FIOS did not filter the dataset to remove duplicate
        records or to create a loan-level or borrower-level dataset. After selecting each sample, FIOS
        confirmed that each sampled borrower was selected only once. As a result, borrowers and loans
        with multiple military deferments and military grace records were more likely to be selected, and
        each borrower or loan did not have an equal chance of selection. The program reviews did not
        disclose that FIOS drew the samples from servicing actions.

    • 	 When preparing the dataset from which FIOS drew the sample for the Pennsylvania Higher
        Education Assistance Authority review, FIOS failed to exclude military deferment and grace
        records associated with loans with an interest rate of 6 percent or less. As a result, 5 1 of the
        99 selected records were associated with loans with interest rates of 6 percent or less, and the
        borrowers of those loans would not benefit from the SCRA interest rate cap.

    • 	 In its second Navient program review, FJOS included servicing actions that occurred outside of
        the review period of June 19, 2009, through May 31, 20 14. Specifically, FIOS reviewed some
        servicing actions even though the servicing actions were posted after May 31, 20 14, as long as
        they had an effective date prior to June 1, 20 14. FIOS explained that "the nature of FFEL
        [Federal Family Education Loans] and DL [Direct Loan] processing is retroactive and entities
        must be able to record both an effective date and a posting date on any transaction." The program
        review report states that, of the 23 borrowers who requested the interest rate cap, Navient
        correctly granted the SCRA interest rate cap to 10 borrowers. However, these 10 borrowers
        included 3 borrowers for whom Navient granted the interest rate cap based on new procedures
        (the Defense Manpower Data Center match) that took effect after the review period end date of
        May 31, 20 14, but for whom the effective dates for the SCRA benefit fell within the review
        period. For these three borrowers, Navient did not grant the SCRA benefit during the review
        period, and FIOS should not have included these borrowers as part of the program review.

As a result of these errors, we cannot render an opinion on the accuracy of the results that FIOS reported.




                                                      4

Second Navient Program Review Methodology Not Disclosed

From the limited documentation available, we cou ld not determine whether the FJOS selected the sample
for the second Navient review at the loan or borrower level. FIOS did not specify the rationale, expected
deviation rate, tolerable deviation rate, or expected precision for the sample design. To allow readers to
properly interpret the results of the program review, FlOS should have disclosed this information and any
limitations on the sample results.

Universe and Sampling Identificalion ofFew SCRA Applicants

For the program reviews of Pennsylvania Higher Education Assistance Authority, Great Lakes, and
Nelnet, FlOS selected samples of99 loans, representing 99 distinct borrowers, for testing. For the second
Navient review, FlOS selected a sample of 300 borrowers for testing. This resulted in FIOS testing
597 borrowers across the fo ur TIVAS. However, o ut of the 597 borrowers tested, o nly 55 borrowers
requested SCRA benefits, of which FIOS deemed 37 to be eligible. 8 Because the number of borrowers
that requested and were eligible to receive SCRA benefits was sma ll, FSA 's ability to draw conclusions
on TIV AS compliance was limited to the few instances of noncompliance that FlOS identified.

Noncompliance by TIVAS

For three of the program reviews, FlOS identified one instance in each review that resulted in a failure to
provide the SCRA benefit to an eligible borrower. For two of the program reviews, FIOS a lso determined
that the T lVAS improperly granted the benefit, used incorrect active duty dates, and made incorrect
adjustments based on service dates. FIOS reported noncompliance with SCRA and recommended
corrective actions, which included correcting the instances that were identified for specific borrowers that
the program reviews covered. FIOS also recommended that two TIVAS review the portfolio of
borrowers granted the SCRA benefit to ensure that the TIVAS granted the benefit on ly to e ligible
borrowers, used the correct service dates, and made correct adjustments based on actual service dates.
However, FIOS did not recommend that the TlYAS review the portfolio of borrowers to identify and
correct all potential instances of incorrect denial of the SCRA interest rate cap. For the program review
of Nelnet, FIOS drew no conc lusion on whether Nelnet was in compliance because FIOS fo und no errors
for the four SCRA e ligible servicemembers it tested.

Press Release Inaccurate

We found that the overall conclusion in the May 26, 2015, press release was not supported by the
program reviews. Specifica lly, the press release concluded that "The reviews, which looked at active­
duty servicemembers' SCRA eligibil ity between 2009 and 20 14, show that in less than I percent of cases,
borrowers were incorrectly denied the 6 percent interest rate cap required by the laws." FIOS based that
calculation on 3 incorrect denials out of a total of 597 servicemembers it sampled. However, FIOS cou ld
not review TIYAS compliance with SCRA requirements for all 597 servicemembers: only
55 servicemembers requested the benefit, and only 37 were actually e ligible. Therefore, FIOS could not
test whether the T IVAS complied with SCRA requirements for 542 of the servicemembers in its sample

8
  FIOS determined that 18 borrowers were not eligible to receive the SCRA benefit, including II borrowers who
were correctly denied the benefit by the TIV AS and 7 who were incorrectly granted the benefit. Of the 37 who were
eligible, 3 were incorrectly denied the benefit.

                                                        5

because those servicemembers had not requested SCRA benefits. To be eligible for the SCRA benefit
and subject to review by FIOS, servicemembers had to request the benefit and provide supporting
documentation (a copy of military orders). Although the results of the four program reviews should not
have been combined, following the approach FIOS used in the program reviews would result in 3
incorrect denia ls for 37 eligible borrowers it tested, which would equate to an 8 percent incorrect denial
rate. However, due to the acceptance sampling design and the few eligible borrowers tested, it was not
appropriate to report an aggregate incorrect denial rate.

FSA Revised Procedurett'for Ensuring Eligible Servicemembers Receive SCRA B enefits

Ln May 20 I 4, FSA waived the documentation requirement (that is, a request for SCRA benefits and a
copy of military orders) for its loans and required the TIV AS to match their loan portfolios to the Defense
Manpower Data Center database. The match identifies potentially eligible servicemembers and grants
them the SCRA benefit.9 TJYAS are required to provide the SCRA benefits to a borrower with an active
duty status end date that is no more than 180 days in the past according to the Defense Manpower Data
Center database. The TIV AS were required to implement this database match on loans as of July 20 I 4
and are to be reimbursed for their efforts to conduct the match and provide the benefit, as well as for
outreach activities to servicemembers.

Conclusion

Based on our review, our overall conclusions are ( 1) the sampling designs were not adequate to project
the extent of SCRA compliance or noncompliance, (2) we cannot render an opinion on the accuracy of the
Department program reviews due to errors we identified, and (3) the Department's press release is not
supported by the work the Department performed and is inaccurate. However, the control requiring the
TJV AS match with Defense Manpower Data Center, if implemented properly, should have corrected this
problem as of July 2014. FSA did not make any effort to require the TIVAS to identify and correct a ll
potential instances of incorrect denials of the SCRA interest rate cap.




9
 This requirement was not initially applied to Navient because at the time it was still under investigation by the
Department of Justice, but was implemented effective October 31, 2014.

                                                           6