POLICY UPDATES

To: State Directors of Adult Education

From: Garrett Murphy

Subject: Final Workforce Investment Act Regulations Issued in Federal Register 8/11/00

Introduction

State and Local Governance

One-Stop Delivery System

Youth Activities

Statewide Activities

Performance Accountability

Administrative Provisions

Indian and Native American Programs

National Farmworkers Job Program

Job Corps

National Emergency Grants to Dislocated Workers

Issues affecting adult education and literacy are found primarily in Parts 660 through 664.

Part 660 Introduction

A definition of individuals with disabilities did not appear in the interim final regulations but has been added to the definitions in §660.300. this definition crosswalks to the definition found in the American s With Disabilities Act.

Part 661 State and Local Governance

The principle of one individual representing more than one partner program also applies to local WIA boards as long as the individual has optimum policy making authority over each.

§661.210 deals with the selection of an existing State board to function as the WIA State board. The section expands on the requirement that the State plan explain the manner in which the State will ensure an ongoing role for any unrepresented membership group or partner program by listing suggested strategies for that involvement. Such strategies may include regularly scheduled consultations, opportunity for input into the State plan or other policy development, and the establishment of an advisory committee made up of unrepresented membership groups. This section also makes it clear that any change in organization or in categories of representation nul lifies the ability of an existing board to function as the State WIA board and requires the State to form a new board that is subject to the WIA prescribed composition.

Part 662 One-Stop Delivery System

§662.210 reiterates the language in the interim regulations that names the eligible agency for adult education and literacy as the One-Stop partner on local boards. The eligible agency is still able to delegate that responsibility to an eligible provider or, in response to a suggestion that we submitted, to a "consortium of eligible providers". We also had suggested that the regulation give the eligible agency the right to designate the person from the designated eligible provider who would serve on the local board. The regulations do not assign that right to the eligible agency. In the preamble to the regulations in which the comments received from the field are printed and responded to, on page 49300, the regulation writers state, "A partner agency may feel it should have the right to choose who sits on the State or local board as its representative. The regulations cannot provide this power to the partners because WIA gives the authority to select State or local board members to the Governor or chief elected official (CEA), respectively. (Statute §111 and §117) However, the Governor’s and CEO’s discretion to select individuals to serve as representatives of partner programs and other entities on State and local boards must be consistent with the requirements set forth in WIA and these regulations. For One-Stop partner programs, the individual selected as the local board representative may or may not be the specific person that each funded entity would prefer, but that individual must be an individual with optimum policy making authority within an entity that receives funds or carries out activities under the partner program." On page 49308 the preamble also states with respect to the naming of a consortium as the designated local One-Stop partner that, "…we assume that any consortium so designated would have mechanisms in place so that it speaks with one voice on behalf of Adult Education and Literacy Programs on issues affecting the One-Stop system." These determinations appear to stop short of the position taken by Assistant Secretary of Education Patricia McNeil in her June 1, 1999 memorandum that "The eligible agency or designated provider has the flexibility to determine the individual who is most appropriate to fulfill these responsibilities."

In §662.230 the regulations spell out the responsibilities of One-Stop partners. These are (a) Make available to participants through the One-Stop delivery system the core services that are applicable to the partner’s programs (The 6/1/99 McNeil memorandum lists three – (1) provision of performance and cost information, (2) initial assessment of skill levels, aptitudes, abilities and supportive service needs, and (3) the provision of information relating to the availability of supportive services); (b) Use a portion of the funds made available to a partner’s program, to the extent not inconsistent with the Federal law authorizing the partner’s program , to: (1) Create and maintain the One-Stop delivery system; and (2) Provide core services; (c) Enter into a memorandum of understanding (MOU) with the local board relating to the operation of the One-Sop system that meets the requirements of §662.300, including a description of services, how the cost of identified services and operating costs of the system will be funded, and methods for referral; (d) Participate in the operation of the One-Stop system consistent with the terms of the MOU and requirements of authorizing laws, and (e) Provide representation on the local workforce investment board.

In §662.250 the regulations support the position of the Department of Education and of many commenters that while services had to be available at the One-Stop center. "availability" could be accomplished without all services being on site. Provision of appropriate technology is one example given in the regulations.

This section also deals with the important concept of services being attributable to the partner program. It states that "The responsibility of the partner for the provision of core services must be proportionate to the use of services at the comprehensive One-Stop center by individuals attributable to the partner’s program." So adult education’s share of the costs of assessment and providing the information on performance, costs and the availability of support services would depend on how many of the people receiving these services were attributable to the program. The regulations are flexible with respect to making this determination. The exact wording (all emphases are mine) is, "(d) For purposes of this part, individuals attributable to the partner’s program may include individuals who are referred through the comprehensive One-Stop center and enrolled in the partner’s program, who have been enrolled in the partner’s program prior to receipt of applicable core services at the center, who meet the eligibility criteria for the partner’s program and who receive an applicable core service, or who meet an alternative definition described in the MOU." We should be concerned about the use of the third criterion – the one that is bolded. It is quite possible that a majority of individuals who need staff assistance at a One-Stop comprehensive center will be determined eligible for adult education and literacy programs but, given the "work first"policy underlying WIA, will be sent to work rather than referred to our programs. Having our share of the assessment cost based upon individuals who are not assigned to our programs seems unfair. The preamble to the regulations on page 49310 points out that none of these alternatives is prescribed and that localities are given the flexibility to select their own methodology for determining proportionate responsibility for attributable services.

The Preamble on page 49311 also responds to a number of comments (ours included) that the regulations allow "fair share"to be contributed "in kind". The discussion goes on to allowing localities maximum flexibility in determining cost sharing arrangements.

§662.260 directs that, in addition to providing applicable core services, One Stop partners must provide access to other programs and activities carried out under the partner’s authorizing laws.

§662.270 deals with funding arrangements for services and operating costs of the One-Stop delivery system. It states that "Each partner must contribute a fair share of the operating costs of the One-Stop delivery system proportionate to the use of the system by individuals attributable to the partner’s program. The regulations refer to a number of methods for allocating costs among partners and indicates that further guidance may be forthcoming after consult ation with other Federal agencies. This reference may be to the Guidance issued in the Federal "Register on June 27, 2000 in which at least one of the methodologies (the "object expense"methodology) appeared to violate the terms of §662.280 below. Also, the concern that was expressed in the discussion of §662.250 with respect to determining attribution applies here as well.

§662.280 makes it clear that the partner’s authorizing statute continues to apply. Expenditures may only be made in behalf of eligible individuals receiving authorized services.

§662.400 does not re-state the language in Statute §121(d)(3) that public elementary and secondary schools shall not be eligible for designation as One-Stop operators except that nontraditional public secondary schools and area vocational schools shall be eligible for such designation or certification. Apparently, in the regulations, such public nontraditional secondary or area vocational schools would fit into either of two categories of eligible institutions – "government agencies" or "other interested organizations or entities."

§662.430 describes conditions under which an existing One-Stop operator may be grandfathered to remain so designated.

Part 663 Adult and Dislocated Worker Activities

 

We, along with the Education Department, NIFL, and COABE, have urged USDOL to include basic skill level for adults in their instrument because case managers will need this information to make coherent decisions about the nature and sequence of services. In a discussion with one key DOL official we were told that local One-Stops should ascertain basic skill levels for many individuals, but that not all individuals requiring staff-assisted services (the gauge for whether or not an individual is considered a participant) would require such an assessment. The example given was that a person might need staff assisted services to apply for Unemployment Insurance but would not need a basic skills assessment to accomplish his or her goal of receiving UI benefits. The official also said the localities could collect basic skills data even though they were not required to report it up the line via WIASRD. We are concerned that localities will use WIASRD as the model for local data collection instruments. At this point the issue of basic skill levels for adults in national, State and local data collection is not settled. The U.S. Departments of Education and Labor will continue to discuss the matter.

§663.200 reiterates what kinds of activities qualify as "intensive services" Among them is "literacy activities related to basic workforce readiness". Intensive services are provided by the One-Stop operator or by contracts with local providers (§663.210). These providers must be approved by the local board.

Adult education and literacy services can be considered "training" if conducted in combination with another authorized training service. Training is mostly reimbursed by means of Individual Training Accounts (ITA’s). §663.515, §663.530, §663.535, and §663.540 describe how lists of approved programs are assembled and maintained.

Both intensive services and training are subject to the accountability standards of Title I, so even if the literacy services that are delivered as part of intensive services or the literacy services that are part of a combined training program are in themselves successful, the effort will not be deemed a success unless the core employment measures are met or exceeded.

Part 664 Youth Activities

§664.200 sets forth the eligibility standards for WIA youth services. An eligible youth is one who (a) is age 14 through 21; (b) is a low income individual as defined inWIA §101(25); and (c) is within one or more of the following categories: (1) deficient in basic literacy skills; (2) school dropout; (3) homeless, runaway, or foster child; (4) pregnant or parenting; (5) offender; or (6) is an individual (including a youth with a disability) who requires additional assistance to complete an educational program or to secure employment.

§664.205 spells out how "deficient in basic literacy skills"is defined and documented. This criterion may be established at the State or local level and must include a determination that an individual fits under at least one of the two following categories:

If a State board sets policy for this determination, the policy must be included in the State plan.

§664.300 defines Out-of- School youth. This important because 30% of a local area’s youth allotment must be spent on these youth. An Out-of-School Youth is an eligible youth who (a) is a school dropout; or (b) is an eligible youth who has either graduated from high school or holds a GED, but is basic skills deficient, unemployed, or underemployed.

§664.310 endorses a comment that we made early in the regulatory process that, "An individual who is out-of-school at the time of registration and subsequently placed in an alternative school may be may be considered an out-of-school youth for purposes of the 30 percent requirement for out-of-school youth". So if an out-of-school youth is placed in a GED program wholly or partially supported by Title I youth funds, that funding may continue even though the youth is now technically "in school".

§664.500 allows for concurrent enrollment of youth in Title I and Title II programs. The regulation is silent on which accountability requirements apply, but there is considerable overlap between Title I youth and Title II indicators – especially the indicators for 16 and 17 year olds.

We will keep you apprised of any further developments as they occur.

REPRESENTATION AT THE STATE LEVEL: At the State levels the eligible State agency for adult education and literacy must be represented on any newly constituted State board. In some cases the State Director of Adult Education may be asked to serve. In others someone higher up in the eligible agency may be the sole appointee. In the latter cases, it is incumbent upon the State Director of Adult Education to press for the formation of a work group upon which the State Director serves and which deals with adult education roles and issues. Some States may elect to retain an existing board as its State board. If there is no existing representation on the board for adult education, the eligible State agency for adult education and literacy must press to ensure that the State plan meet its obligation to" ensure an ongoing role for" adult education and literacy and allow adult education and literacy" to have an opportunity for meaningful input into decisions made by the State board".

REPRESENTATION AT THE LOCAL LEVEL: The first decision to be made is whether or not to retain One-Stop partnership at the State level or to delegate this role to local entities. If a State eligible agency retains this responsibility, provision must be made to designate staff to attend local board meetings. If a State eligible agency decides to delegate this responsibility to local programs or consortia, the State eligible agency must alert these designees and apprise them of their duties. Whether the designee is a single agency, or whether there are multiple designees in a single workforce area, one individual must be selected to serve on the local board. Individuals so designated must have "optimum policy making authority within the organization, agencies, or entities they represent". Some local chief elected officials may wish to choose an individual who supervises policy-setting for several partner programs in order to limit the number of seats on the board. This policy conflicts with guidance from DAEL (OVAE Program Memorandum 99-14 released June 1, 1999 and approved by USDOL) which maintains that the State eligible agency chooses the local board representative, and in situations where the State eligible agency delegates One-Stop responsibility to a local provider agency, the State eligible agency and the local provider jointly arrive at the name of a representative to the local board. Some of the materials being used by chief elected officials say that the CEOs "select" members of the local boards. The law says that they "appoint" such board members according to criteria established by the Governor. Governors’ criteria must be consistent with the law and regulations.

Nevertheless, State Directors of Adult Education are reporting that CEOs are appointing superintendents of schools or intermediate units or college presidents or provosts to represent the several programs under their jurisdiction on local boards. The hierarchy of some State eligible agencies may not wish to oppose this practice, leaving State Directors no choice but to advise local provider agencies to strive to establish work groups reporting to the appointed representative to ensure that adult education has a say in the formulation of MOUs and local plans. If an existing alternative entity is selected to be the local board, and adult education has no representation on that existing board, that board must allow adult education officials to "have periodic regular meaningful opportunities for input into decisions made by the local board". Local adult educators with support from eligible State agencies should establish a process (such as the work groups mentioned above) to provide for such input.

PLANNING AT THE STATE LEVEL: Adult education should be a part of all WIA planning whether or not the State intends to file a unified plan with adult education as one of the component programs. Whether a State adult education program filed a separate five year plan, filed a transitional one year plan leading to incorporation into a unified plan, filed a one year transitional plan that will be followed by a separate four year adult education plan, or was incorporated into an early implementation unified plan, it is essential those individuals responsible to craft and update the Governor’s Title I and III plans be cognizant of the role that adult education can play in the new One-Stop system and reflect this awareness in their plans. If State Directors serve directly on the State Workforce Board, they have an excellent opportunity to become involved in this planning. In those cases where an official higher up in the eligible State agency for adult education and literacy is the sole appointee to the board from that agency, a work group like the one mentioned above in the section on Representation would have to become involved in planning activity. Key staff of the State adult education office should be assigned to that workgroup.

In a case where a State chose not to establish a new board but to continue with an existing board, and that board does not have a representative who can speak for adult education, the State Director of Adult Education has the responsibility to seek involvement in the formulation of the language in the State plan which is required to describe "the manner in which the State will ensure an ongoing role" for adult education and literacy. Again, in situations where the State Director of Adult Education is not appointed to the State board, a work group reporting to the appointed representative would be responsible to play this "ongoing role".

NEGOTIATION: The Interim Final Regulations for Title I designate the eligible agency for adult education and literacy as the One-Stop partner for each local workforce board in the State. An early decision must be made as to whether or not the eligible State agency wishes to fulfill this role itself or designate a local entity (or "entities" if DOL agrees with our position on the regulations). There appear to be three scenarios:

IN-SERVICE FOR LOCAL PROGRAMS: In addition to in-service activity prompted by the introduction of the new core indicators and the National Reporting System, local programs will also need help in adapting to their new roles as negotiators, One-Stop partners, and potential One-Stop operators. They will also need to be apprised as to how they are to report performance information to the One-Stop (individually or will the State eligible agency collect this information [which is needed for its report to the Secretary of Education] and distribute it to local One-Stop administrations?).

Local programs can also receive payment for offering training services but, except where the Governor specifically allows for group contracts, payment will be in the form of Individual Training Accounts. The law also classifies adult education and literacy activities as a form of training (and therefore eligible for Title I funds) if it is conducted in combination with one or more of the other eligible training activities (occupational skills training, on-the-job training, skills upgrading and retraining, programs that combine workplace training with related instruction [cooperative education], training programs operated by the private sector, entrepreneurial training, job readiness training, and customized training for an employer who commits to hiring). Eligible State agencies for adult education and literacy need to work with Title I State leadership to establish ground rules for combining adult education and literacy with other training. Does combining mean "operated concurrently" or can one service precede the other? Does combining require a 50/50 split of weekly time, or is there a minimum percentage for one service or the other to make it qualify? Could combining mean one service in one week and the other service in the next? Or does combining mean the CET model of a basic skills instructor and an occupational skills instructor in the same classroom? States are given flexibility to establish their own rules. The State may opt to pass this choice onto localities.

ADULT EDUCATION AND PELL GRANTS: At first glance there appears to be little relationship between literacy and Pell grants, the latter being a resource for assisting eligible students with higher education costs. However, non-degree proprietary schools (most of which have postsecondary status) and certain community based organizations that are registered with a Federally recognized credentialing agency as "private postsecondary vocational" often offer non-degree programs that are a mixture of basic education or ESL and occupational skills. If these programs meet the WIA definition of a "combined" basic education and occupational skills program in your State, these programs will be very attractive to local One-Stop operators because the One-Stop operator only has to pay for costs not covered by the Pell grant. Degree-granting institutions may also offer such combined programs and have enrollees qualify for Pell grants, but degree-granting institutions are often reluctant to devote limited Pell resources to non-degree activity. State Directors of Adult Education should be aware of this dynamic and monitor the situation in their States.

WORKFORCE LITERACY SERVICES: Many adult education and literacy programs have independently established workplace literacy programs with local business and industry. Whether or not to involve the local One-Stop system in these programs may depend upon whether or not additional needed services might be secured through such a linkage. A number of States plan to use their State setaside of WIA funds for incumbent worker training. You may wish to encourage your workplace literacy providers to connect with these efforts or, if you judge such connections to impose restraints on local programs’ ability to effectively conduct workplace literacy programs, you may opt to discourage such connections.

PARTICIPATION IN INCENTIVE PROGAM DESIGN: The law gives the Secretary of Labor authority over the use of incentive grant dollars. States that exceed adjusted performance levels for Title I, Title II and Perkins are eligible to receive an incentive grant from the Secretary. Since the national incentive pot is comprised of setasides from Title I, Title II, and Perkins, any activity engaged in with these dollars must be authorized by one of those statutes. The State can decide to spend the money entirely on Title I activities, or Title II activities, or on Perkins activities. Or it could expend the money on activities authorized by two of the three contributing programs. Or it could spend the money on all three program areas but not necessarily in proportion to the size of each program’s contribution. How this money is to be spent is contained in the application that the State sends to the Secretary of Labor. The Secretary may only review the application if it has been approved by the Governor, the eligible State agency for adult education and literacy, and the agency responsible for Perkins, and if the Legislature has been consulted. It is important that State Directors of Adult Education become involved in the preparation of that application in their States.