Part Three: Continued Analysis of the Workforce Investment Act
Last updated September 1, 1998
|This is the third in a series of
analyses of the Workforce Investment Act. This analysis retraces some material that was
presented in previous reports but with a greater emphasis on interpretation. These
interpretations are subject to change.
Summaries and comments on the new Act are now appearing on various web sites. The US Department of Labor has both a summary and a side-by-side comparing the Act's provisions to current law available at www.doleta.gov. Neither of these analyses devotes much space to Title II, but they do a good job at analyzing the employment and training implications. The National Governors Association also has a summary of the Act available at www.nga.org..
In addition to new responsibilities for the management of the adult education and literacy programs in your States or outlying areas, the new Act also imposes certain obligations and presents certain opportunities for adult education and literacy in its workforce title.
Part Three: Continued Analysis of the Workforce Investment Act
Dollars for Transition: Not to exceed 2% of any allotment to any State may be used to plan and implement programs and activities authorized under the Act. Fifty percent of these monies must be made available to local entities. These funds may be used until July 1, 2000, which is the last possible date for any State to implement programs and activities authorized under the Act. §506(d)
Regulations: At first glance there appears to be no authorization for the Education Department to promulgate regulations. Subsection (b) of Section 506 authorizes the Secretary of Education to take appropriate actions to provide for transition. It limits the Secretary's authority to do this to one year from the enactment of the Act, i.e. August 7, 1998. There is no mention of Education Department regulations.
The next subsection of Section 506, subsection (c), authorizes the Secretary of Labor to promulgate interim regulations by February 7, 1999 and final regulations by December 31, 1999. In the following subsection (d) devoted to transition funds (see Dollars for Transition above) the Act says that the transition funds must be spent in accordance with regulations developed under subsection (b). Since subsection (b) is the subsection authorizing the Secretary of Education to take appropriate actions related to transition, it appears that the framers of the Act did intend that the Secretary of Education promulgate regulations, although no timetable is provided other than the one year transition authority.
Representation on State Workforce Investment Boards: The first such obligation/opportunity is representation to the State Workforce Investment Board. Certain programs and activities are designated by the Act as "one-stop partners". Adult education and literacy programs are so classified. §121(b) The Act requires that the State Workforce Development Board "shall include" the lead State agency officials for one-stop partner programs or activities. §111(b)(1)(C)(vi)(I) The only way around this appears to be if the State decides to use an existing body which "substantially" meets the requirements of the Act. §111(e)(1) Should such an existing board be chosen, and there is no representation for adult education, a case should be made that the "substantially" criterion cannot be met if an important one-stop partner is not represented.
In some States the chief school officer or other official who is further up the hierarchy than the adult education State director may serve as the "lead State agency official" for adult education. Governors are likely to favor such arrangements because, since representatives of business must form a majority, every time a non business person is appointed, a business type must be appointed to maintain the balance. Governors will be looking for persons who can represent multiple constituencies so as to control the size of their boards.
In such cases, the State director for adult education should endeavor to accompany that supervisor, at the very least each time the agenda deals with a potential adult education issue. Should the State choose to submit a unified plan which includes title II, it would be critical for someone familiar with the operation of the title II program to ensure that the broad purposes of adult education - as set forth in the Act - are safeguarded. Even if a State should choose not to submit a unified plan, or if it were to submit a unified plan that did not include Title II in the unification, the title I State plan must include "a description of the procedures that will be taken by the State to assure coordination of and avoid duplication among title II of this Act, ." §112(b)(8)(A)(iii)
The State Workforce Investment Board is also charged not only with responsibility to develop the State plan, but also to insure the development and continuous improvement of the one-stop system, development of the incentive grant application, development of linkages to assure coordination and nonduplication among one-stop programs and activities, and review of local plans. §111 Representation is crucial!
Unified Plans: Earlier drafts of the Act appeared to require that all programs included in a unified plan be operated via the local one-stop systems. Also, only States with unified plans could compete for incentive grants. Both of these provisions were dropped in the final version. Unified plans must include at least one of the following programs: secondary vocational programs under the Perkins Act (only if the State legislature concurs); postsecondary vocational education programs under the Perkins Act; activities authorized under title I of the Act; and/or activities authorized under title II of the Act. Also, a unified plan may include one or more of the eleven other activities with which a State plan must demonstrate coordination. A plan that includes any 2 or more programs or activities that meet the above requirements constitutes a unified plan.
Whether or not title II (adult education) is included in a unified plan, the title II requirements applicable to that plan must be satisfied. The Act reads, "In General.-- The portion of a State unified plan covering an activity or program described in subsection (b)" (the Unified Plan subsection) "shall be subject to the requirements, if any, applicable to a plan or application for assistance under the Federal statute authorizing the activity or program." §501(c)(1)
If the title II State plan is not to be submitted as part of a unified (or comprehensive) plan, the eligible agency must submit it to the Governor for comment. These comments must accompany the submittal of the plan to the Secretary of Education. If title II is included in a unified plan, the "appropriate Secretary", i.e. the Secretary of Education, has the authority to approve the portion of the plan relating to the activity over which the Secretary has jurisdiction. The Secretary has 90 days in which to render a judgement and may only reject a plan if it is inconsistent with the authorizing statute or the provisions of the Act dealing with unified plan content. §501(d)(1) and (2)(A)
LOCAL LEVEL ISSUES
Representation on local Workforce Investment Boards: Required composition of local boards includes a number of categories of representation. One category reads, "representatives of local educational entities, including representatives of educational agencies, local school boards, entities providing adult education and literacy activities, and postsecondary educational institutions (including representatives of community colleges (where such entities exist) selected from among individuals nominated by regional or local educational agencies institutions or organizations representing such local educational entities." §117(b)(2) (A)(ii). (Representation of community based organizations is addressed in another category.) The ambiguity of this language could be troubling because it could be read as meaning that one or two representatives could be nominated to represent the entire category. However, there is a separate category of representation that reads "representatives of each of the one-stop partners". Since adult education is designated a required one-stop partner, it should merit representation on that basis, but the same dynamic that may affect selection of representatives to State workforce investment boards may also affect the selection of members to serve on local boards. Chief elected officials may seek persons who can represent several constituencies in order to control the size of the local board. [§121(b)(1)(B)(iii)]
Setting Fees: States and localities which aspire to augment their adult education funds (especially to make up for the loss of JTPA 8% dollars) with Title I funds by receiving paid referrals from one-stops will have to do two things. First, they will have to operate adult education services in combination with other training activities authorized under the Act. §134(d)(4)(D)(viii) Second, they will have to set fees for their services because, except for certain special circumstances, payment for such a combined adult education/training program will be via Individual Training Accounts. Local programs may have to establish tuition charges. Because of the variation in needed lengths of stay in adult education programs, it may be useful to establish charges for certain limited blocks of time - and calculate individual charges by the number of blocks to be needed by each individual. §134(d)(4)(G)(i) Eligible agencies may continue to use grants or contracts to distribute Title II monies.
Functioning as a One-Stop Partner and a One-Stop Customer: "One-stop partners are to participate through a network of affiliated sites that can provide 1 or more of the programs, services, and activities to individuals," and through a network of eligible one-stop partners - in which each partner provides 1 or more of the programs, services or activities to such individuals and is accessible at an affiliated site that consists of a physical location or an electronically to technologically linked access point." §134(c)(2) These "programs, services or activities" are the core services, and access to intensive services and to training. Partners can be given title I dollars to perform these activities, or they can use dollars from other titles or programs which they may have available to them. §134(d)(1)(B) Such decisions will be made in the memoranda of agreement entered into by each one-stop partner and the chief elected official. §121(a)(1) Exactly what comprises core services and intensive services is covered in one of the earlier analyses (see the continued analysis of the bill for more information) in a section entitled "Establishment of One-Stop Delivery Systems". Each one-stop has an "operator" to manage the system. (Selection of one-stop operators is dealt with in the following section.) One-stop operators must provide core services themselves or through one-stop partners. The one-stop operator has the option of providing intensive services itself, through its partners, or through contracts with other eligible providers who have gone through the local board's approval process. [One-stop responsibilities can be found in §134(d)(2), (3), and (4). How local entities are approved to accept grants, contracts or individual payments can be found in §122(a)(2)(A), (B), and(C)] and §122(b)(1) and (2)]
One-stops may provide access to training to adults for whom core and intensive services did not lead to employment or, if the candidate was employed, did not lead to a salary which provided for self sufficiency. Where there are options with respect to what agency will provide this training (including combined adult education/training), the one-stop is to provide accountability data and consumer satisfaction data for each agency under consideration, and the individual to be trained makes the choice. Both partner agencies and approved non partner agencies may be eligible to receive individual payments for training (including combined adult education and training), although there may well be an expectation on the part of the one-stop that an agency that receives title II dollars will use that funding and any other funding at its disposal to support adult education activity, whether it be separate or combined with a training activity.
The Act provides no information about how one-stop partners are to be chosen. In States that have regional cooperatives, the cooperative itself might be the one-stop partner although each component agency might have to submit its own accountability data to the one-stop operator for referral purposes. In States that do not have regional cooperatives, the chief elected official and the local board may wish to select one or more adult education programs to be the one-stop partner(s). §121(a)
It is unlikely that much adult education activity would qualify for Pell Grants, although I have seen programs which combine ESL with some sort of training, and these programs have qualified for Pell Grants. Usually such programs are operated by community based organizations that have been accredited by a national independent accreditation organization as "a private postsecondary vocational school, the same classification as many proprietary schools. Such schools would have a competitive advantage in seeking title I funding for combined adult education/training because the Act requires one-stops to seek out Pell Grant funding before committing title I funding to any training activity.
Selection of One-Stop Operators: A one-stop operator has the day-to-day responsibility to manage the work of the center/network. One-stop operators can be selected by the local board and the chief elected official through a competitive process or by agreement with a consortium of three or more one-stop partners. If a one-stop already exists, there is a process by which it can continue. A one-stop operator can be any of the following, or a consortium thereof: postsecondary educational institution, Wagner-Peyser agency, private non profit agency, private for-profit agency, government agency another interested organization, such as a Chamber of Commerce. As reported above, elementary and secondary schools are prohibited for being one-stop operators, except that nontraditional public secondary schools and area vocational centers are eligible. The arrangements for one-stop operation are a part of the memorandum of agreement (mentioned above) which also designates the one-stop partners and describes their responsibilities with respect to the one-stop system.
Supplying Performance Data For Use By One-Stops: To be a provider of services under title I an agency must submit completion, wage, retention, and placement information, "and, where appropriate, the rates of licensure or certification, attainment of academic degrees or equivalents, or attainment of other measures of skills, of the graduates of the applicable program ." This information must be submitted to the appropriate local board in the manner prescribed by that board. §122(c)(5)(A) & §122(d)(1)(A)(ii) To be a provider of services under title II, an agency, " after the 1 year period beginning with the adoption of the eligible agency's performance measures under Section 212 " local agencies must report their success in meeting or exceeding these performance measures. §231(e)(2) These reports will be provided to the applicable one-stops which will make this information available to individuals to be referred to adult education programs. §134(d)(2)(F)
Youth Programs and Activities: The Act provides a separate funding stream in title I for youth activities. The relationship between youth activities and one-stops is not spelled out in the Act, although one-stops have responsibility for all programs authorized by title I. The youth category is split into two: youth 14-18 and youth 19-21. Each local board is to have a youth council consisting of some board members and some who are not board members. This council recommends to the board which agencies should be awarded grants or contracts to conduct needed activities. §117(d)(2)(B) In addition to meeting the age requirement, youth must be low income and meet at least 1 of 6 specified barriers to employment. At least 30% of funds must be spent on out-of-school youth. Assessment, preparation for postsecondary educational opportunities, and completion of secondary education are just some of the authorized activities for youth that an adult education program might provide. The full list of authorized activities can be found in §129.
Youth who are age 19-21 are eligible for adult services and are subject to the employment-oriented core indicators of performance that apply to adults in which achievement of a recognized credential is only counted if it accompanies unsubsidized employment. The one exception is that 19-21 year olds may also count entry into postsecondary education or advanced training as allowable outcomes. Youth who are age 14-18 have a different set of indicators. They are: attainment of basic skills, and as appropriate, work readiness or occupational skills; attainment of secondary school diplomas and their recognized equivalents; and placement and retention in postsecondary education or advanced training, or placement and retention in military service, employment, or qualified apprenticeships. Persons 16 and above and out of school who demonstrate an educational need continue to qualify for title II funded programs, and these programs would be subject to the adult education performance indicators specified in §212.
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