Key issues raised by the WIOA NPRMs

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NSC hosted a webinar on April 22 covering key provisions in the NPRMs and what they mean for the workforce and industry. Click here to watch "Unpacking Proposed WIOA Regulations".

Last week, the Departments of Labor (DOL) and Education (ED) released five notices of proposed rulemaking (NPRM) governing implementation and administration of the Workforce Innovation and Opportunity Act (WIOA). The five NPRMs cover:

• Unified and combined plans, performance accountability and the one-stop system (DOL/ED)
• DOL-administered activities (DOL only)
• Title II Adult Education and Family Literacy Activities (ED only)
• Miscellaneous program changes (ED only)
• State Vocational Rehabilitation Services program, state-supported Employment Service Programs, and limitations on the use of subminimum wage (ED only)

The regulations will be formally published in the Federal Register on April 16, 2015. Public comments are due to the agencies within 60 days of the April 16 publication date. NSC has conducted an initial scan of the draft regulations to identify key issues within the joint planning, DOL-administered activities, and Title II NPRMs and has identified a set of areas of interest for further discussion and analysis.

Planning and Governance 

• Combined State Plans. Under WIOA, states can choose to submit combined plans that not only cover WIOA’s core programs, but also include plans for additional federal programs with a workforce component.  DOL and Ed strongly encourage states to submit a combined state plan. The regulations explain that states need not submit a separate individual state plan for the additional federal programs included in the combined plan. However, combined plans must include the information required by the laws governing these additional programs (§676.140). DOL and Ed will issue joint guidance on combined plans.
• State and Local Board Membership. Sections 679.110(b)(3)(i)(D) and 679.320(b) propose that at least one member of the state board and at least two members of the local board must represent small business. WIOA requires that a minimum of 20 percent of the members of state and local boards must represent the workforce. The law further requires that the 20 percent must include representatives of labor and a representative of a joint labor-management partnership. DOL has interpreted this provision to mean that state and local boards must each include at least two representatives of labor organizations, and at least one representative of a joint labor-management partnership (§679.110(b)(3)(ii)(A)-(B); §679.320(c)(1)-(2)).

 
Sector Partnerships and Career Pathways 

• Sector Partnerships. Sec. 134(c) of WIOA identifies the development, convening, or implementation of industry or sector partnerships as a required local employment and training activity; however, the regulations offer limited guidance as to how this aspect of the law should be implemented at the local level, and provides relatively little guidance on how state boards can support the development and expansion of sector partnerships.
• Career Pathways. WIOA requires state boards to develop career pathways strategies and the local boards to develop and implement career pathways. The law further requires that adult education must be aligned with the other core programs to develop career pathways. While proposed §679.370(f) reiterates the WIOA requirement that local boards lead efforts to develop career pathways  with representatives of secondary and postsecondary education programs, the regulations are less clear on the role of adult education as a partner in the development and implementation of career pathways. 
• Business Services. The NPRM describes business services that must be provided through the one-stop system.  Industry sector strategies, customized assistance in developing a registered apprenticeship program, career pathways, skills upgrading, and skill standard development are included in a list of allowable activities that may be provided by business intermediaries or by using economic, philanthropic, and other public and private resources (§678.435(c)).

Title I Services and Training

• Individual Training Accounts. Under WIOA, registered apprenticeships are automatically qualified to be placed on the state eligible training provider list (ETPL). Proposed §680.470 requires the Governor to develop a process by which registered apprenticeship programs may indicate interest in getting placed on the state’s ETPL. Proposed §680.330(a) clarifies that ITAs may be used to support both pre-apprenticeship and registered apprenticeship. Section §681.550 provides that consistent with the DOL waiver policy under the Workforce Investment Act (WIA), ITAs may be used for older out-of-school youth (OSY) ages 18-24.
• Career Services. WIOA merged core and intensive services into a single “career services” category, and clarified that the law does not prescribe a sequence of services. DOL is proposing classifying career services into three categories, basic career services, individualized career services, and follow-up services (§678.430). WIOA requires priority of service for a subset of career services, which DOL has labeled individualized career services. Under the law, priority for these services must be given to low-income adults and public assistance recipients and individuals who are basic skills deficient (§678.430).
• Priority of Service. WIOA requires priority of service for recipients of public assistance, other low income individuals, and individuals who are basic skills deficient for certain career services and training services funded by the WIOA adult funding stream. DOL has proposed requiring local plans to describe the process by which the priority of service must be applied for the one-stop operator (§679.560(b)(21).
• Pre-Apprenticeship. §681.480 defines pre-apprenticeship as “a program or set of strategies designed to prepare individuals to enter and succeed in a registered apprenticeship program and has a documented partnership with at least one, if not more, registered apprenticeship program(s).” The definition is based off of the definition of a quality pre-apprenticeship included in Training and Employment Notice (TEN) No. 13-12. WIOA did not include a definition for pre-apprenticeship.
• Registered Apprenticeship. In general, the NPRMs support the law’s focus on better integrating registered apprenticeship into the workforce system. Section 680.330 makes clear that ITAs and contracts for services may be used to support registered apprenticeship, and that supportive service and needs related payments may be provided to support the placement of a participant into a registered apprenticeship program. The proposed regulations also clarify that registered apprenticeship programs are automatically qualified to be placed on the state ETPL, and may remain on the list so long as the program remains registered. Section 680.470 further requires the state to adopt a mechanism by which registered apprenticeship programs may indicate interest in appearing on the ETPL. DOL also clarifies that an OJT contract may be made with a registered apprentice program to support the OJT portion of the registered apprenticeship program (680.740(a)).
• Incumbent Worker Training. WIOA permits up to 20 percent of local adult and dislocated worker funds to be used for incumbent worker training (IWT). DOL suggests that an ideal incumbent worker training scenario is one where a worker acquires skills that allow them to advance in their employment within the company and allows the company to backfill the incumbent worker’s position. DOL is seeking comments on the best ways to structure incumbent worker training, including comments on the appropriate minimum tenure of an IWT-eligible employee and how to assess whether IWT increased the competitiveness of the employer or employee.

Title II Adult Education and Family Literacy

• Local Board Review of Adult Education Provider Applications. Proposed §679.370(n) reiterates the WIOA requirement that local boards must review adult education and literacy activity providers’ applications and make recommendations to the state agency  to ensure the applications are consistent with the local plan.
• Integrated Education and Training. Articulates the required elements for integrated education and training programs, and proposes how such programs can show that they meet the requirement to be “for the purpose of educational and career advancement (§463.38).”
• Integrated English Literacy and Civics Education. Articulates the required elements for Integrated English Literacy and Civics Education programs.
• Provider Effectiveness. Solicits public comment on how prospective providers can demonstrate their effectiveness (including both providers who have previously received AEFLA funds and those who have not) (§463.24).
• English Language Acquisition Programs. Solicits public comment on how English language acquisition programs can satisfy the requirement that they lead to attainment of a high school diploma and transition to postsecondary education or employment (§463.32).

Youth Services 

• Youth Work Experiences. DOL suggests the WIOA requirement that 20 percent of youth formula funds must be spent on work experiences for youth, is, “arguably the most important element as signaled by the minimum expenditure requirement.” Section 681.620 clarifies that summer youth employment is no longer required under WIOA (although it remains a permissible work experience activity), and §681.610 indicates that the work experience expenditure rate should be calculated using the total amount of non-administrative youth formula dollars.
• Youth-Adult Education Collaboration. DOL notes that WIOA emphasizes coordination across federally-funded employment and training programs, which includes the WIOA youth program and Title II adult education programs. As such, DOL indicates that co-enrollment between these two programs can be very beneficial for disconnected youth. In addition, §681.430 permits individuals who meet the respective eligibility requirements for WIOA youth and Title II to participate in these programs concurrently.

Performance Accountability

• Performance Indicators for Core Programs. WIOA establishes six indicators to measure performance across core programs.  The NPRM seeks comments on its proposals for further defining these measures. In particular, the NPRM suggests different options for measuring participants’ progress toward a credential or employment and for measuring programs’ effectiveness in engaging employers. 
• Performance Targets.  States’ performance is based on the primary indicators for WIOA’s six core programs. A statistical model that adjusts outcomes based on economic and participant characteristics will be used to help negotiate performance targets and the measure of outcomes (§677.170). In addition to individual indicator score, the NPRM proposes two more criteria for measuring a state’s performance relative to targets: overall state program scores will measure how each core program does across the primary indicators, and overall state indicator scores will measure average outcomes for each core indicator across the core programs.  
• Performance reports. States are required to submit reports containing information on WIOA program participants’ characteristics, key education and employment outcomes, and program costs (§677.160). These reports must also provide access to performance reports for local areas and eligible training providers. States may face sanctions for late or incomplete reporting.
• Other Data and Performance Provisions. For more information on data and performance, see the Workforce Data Quality Campaign (WDQC) post on the WIOA regulations.

One-Stop Delivery System

• Relationship with TANF. Under WIOA, the state Temporary Assistance to Needy Families (TANF) program is a mandatory one-stop partner, unless the governor explicitly declines to include TANF as a required partner. Even if the governor makes this decision, TANF programs may still opt to be a one-stop partner or work with one-stop centers (§678.405). The draft regulations strongly encourage cooperation between WIOA-funded programs and other sources of assistance to jobseekers, including the TANF program.
• One-Stop Operator Selection.  In §678.605, the NPRM confirms that one-stop operators must be selected through a competitive process, and identifies different competitive processes that can be used. The NPRM proposes that local boards hold this competition at least once every four years. The NPRM also responds to stakeholder concerns regarding a competitive selection process.  Section 678.600 lists the types of entities or consortium of entities that can operate one-stop centers.
• One-Stop Infrastructure Funding. WIOA allows local boards, chief elected officials, and one-stop partners to develop an agreed-upon method for funding one-stop infrastructure costs, but imposes a state infrastructure funding mechanism if local consensus isn’t reached. Subpart E of Part 678 of the NPRM addresses local one-stop infrastructure costs, guidance from the Governor, local and state funding mechanisms, and other elements of infrastructure funding.  
   

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