The following questions and answers were posted over time
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Is Test for Adult Basic Education (TABE) accessible online?
The TABE 11/12 Locator is available online through a portal that MUST be accessed through Google Chrome:
Students must still be registered for the session using DRC’s Insight portal, and then the student would be sent their test username/password through e-mail or some other means. Delivery of the locator using Google Chrome means that the locator could be taken on any device.
The locator still will not give an NRS level, or a scale score, but will give direction on which TABE level to administer. The online locator is the first phase of what DRC is working on and can be used to make instructional decisions with new students who are entering the program. The locator IS NOT a pre- or post-test.
By 4/24/20, TABE will release TABE 11/12 for remote proctoring via “video conferencing software” (e.g., Zoom, WebEx, Microsoft Teams). They have set no requirement for the brand of software that must be used, only that a webcam must be available. As with the online locator, registration and reporting will still be done through the Insight portal. Tests delivered through the portal are valid pre- and/or post-tests for AEFLA-funded programs.
DRC plans to hold training webinars next week regarding full TABE 11/12 delivery, and that information will be shared once it is received.
New youth enrollments and TABE (Test for Adult Basic Education): Our TABE testing sites are shut down and we are unable to get youth tested. Could we get a waiver on TABE and utilize any other tool that you may be aware of?
There is no (federal) requirement that the TABE test be administered to Youth or anyone else. TABE would be a preference or requirement by your Youth Service Provider or entity they answer to.
For an objective assessment of basic skills, which would typically be part of an initial assessment process, the requirement is for an instrument which is valid and appropriate for the target population and provides for reasonable accommodations in the assessment process when necessary. There are any number of valid and appropriate assessments of basic educational skills. This is a preliminary assessment that only provides an indicator of an applicant’s appropriateness for referral to a provider for more in-depth diagnostic testing and service design. You should be able to accomplish this absent a TABE testing site.
The next step, should a referral be appropriate, is an assessment of Educational Functioning Level for meeting the performance measure of a skills gain if the youth is referred to a provider of one of the Youth Program elements dealing with educational attainment below the post-secondary level. When assessing for Educational Functioning level the test/assessment must be one approved by the U.S. Department of Education’s National Reporting System (NRS) and the same test must be used for both the pre-test and post-test to measure any gain. This would generally be done in conjunction with a decision to enroll in the service. Again, there are options other than TABE.
It is our understanding in Kansas, the State Board of Regents (under which Tile II Adult Education and Family Literacy Act falls) has required its Title II providers to use the TABE. If you are using a Title II ABE provider either independently of or in conjunction with Title II, they probably use the TABE and will need a TABE pre-test to demonstrate EFL achievement after providing their services. You may want to look for a non-title II provider or ask you current providers to expand their delivery (in particular pre/post-test) capacity to include something other than TABE.
If you need diagnostic test results, you may want to check with the school the Youth last attended and/or other partners who may share the customer. Most Unified School District’s in Kansas also use the TABE. If the Youth had a TABE administered by a school they attended in the past six months or by referral from a partner entity, those results are still considered valid.
Without having access to a valid actual pre-test or pre-testing capacity, the related service options would also be off the table as unavailable/inappropriate at this time. The provider would have to have some valid (diagnostic) indicator of where to start with the customer and what level of services are appropriate before providing the service as well as a means of evaluating efforts, which is probably a more important consideration than getting a mark on the annual tally sheet for a performance measure.
Measurable skills gains can be documented by other means than Educational Functioning level, including completion of GED or HS diploma, secondary or post-secondary transcript or report card for a sufficient number of credit hours that shows a participant is meeting the State unit's academic standards, and occupation skill achievements through exam, licensure, milestone achievement, etc.
One thing to keep in mind regarding Measurable Skills Gains is the achievement is recorded per program year. Even if a TABE or other testing were available for a new enrollment, it is highly unlikely you have sufficient time left in this program year to achieve an Educational Functioning Level.
With in-person services temporarily suspended in favor of virtual service delivery, is virtual eligibility determination and documentation allowable?
There is no State or Federal requirement regarding proximity of the customer to staff during intake, eligibility or enrollment. Data Validation instructions provide data elements which are subject to verification/validation and acceptable forms of source documentation. Please consult the State Policy 05-02-01 on Eligibility Determination and Documentation, State Policy 05-38-00 on Data Collection and current/recent DOL Data Validation Guidance for acceptable methods and means of verifying data. Some examples could include:
- Hard copy primary source documents. There is nothing State or Federal that says documents cannot be mailed, faxed, or scanned and emailed to the staff responsible for document collection.
- Many data elements can be verified by visual inspection of a document by the intake worker/case manager. There is nothing that says this inspection cannot take place via electronic conveyance such as Skype or other means of video conferencing.
- Third party verification is acceptable for some data. Most third-party sources such as government offices/agencies, employers, shelters, etc. are still operating in some capacity and should be able to respond in some fashion; verbally by phone, e-mail, fax, snail mail, etc.
- Self-Certification has been allowed as a last resort when other means have been exhausted or are not practical. As always, document the failed attempts and obtain a signed self-certification specific to the data element being verified/validated.
We are currently operating under a declared national emergency. Standard operating procedures for verification of eligibility under DWG Disaster grants allow for self-certification with the caveat regular means of verification will be pursued within 60 days. This does not excuse an entity or CEO of the financial liability for funds expended on an individual who is later found ineligible. However, under WIOA Titles I and III, the risk of enrolling an individual who is not eligible under one or more possible funding alternatives should be relatively low. Entities responsible for eligibility determination and enrollments (e.g., LWDB’s, project operators and service providers) should evaluate their tolerance for risk as well as current flexibility allowed in local operating policies.
If a Youth participant has a Measurable Skill Gain (MSG) set in PY17 for a Training Milestone for participation in an OJT, but they do not complete the OJT until PY18, should a 2nd MSG for Training Milestone be set for the new PY, and can you use successful progress on monthly reports as "attained" in PY17, or can you only mark it as "attained" when they complete the full OJT in PY18?
All In-School Youth (ISY) are included in the measurable skill gains indicator since they are attending secondary or postsecondary school. Only Out-of-School Youth (OSY) who are in one of the following are included in the indicator:
- The program element occupational skills training
- Secondary education during participation in the title I Youth program
- Postsecondary education during participation in the title I Youth program
- Title II-funded adult education during participation in the title I Youth program
- The YouthBuild program during participation in the title I Youth program
- Job Corps during participation in the title I Youth program
The measurable skill gains indicator is used to measure interim progress of participants who are enrolled in education or training services for a specified reporting period (program year). Therefore, it is an annual measure and not an exit-based measure. Instead, it is intended to capture progressions through pathways that offer different services based on program purposes with a range of services tailored to individual needs and goals. Every youth participant enrolled in any of services listed above is part of the numerator for the MSG measure every program year (reporting period) they are enrolled. If an enrollment spans more than one program year, regardless of the number of hours of training or instruction delivered, the participant must have a measurable skill gain achieved in each program year they are enrolled in, to count in the denominator. The gain must be a new gain/achievement, not the same achievement/gain carried over from one year to the next. Failure to achieve (or record) a measurable skill gain in any program year (reporting period) a youth is enrolled, has a negative impact on performance.
From TEGL 10-16:
Satisfactory or better progress report, towards established milestones, such as completion of OJT or completion of one year of an apprenticeship program or similar milestones, from an employer or training provider who is providing training – Documentation for this gain may vary, as programs should identify appropriate methodologies based upon the nature of services being provided, but progress reports must document substantive skill development that the participant has achieved. The gain may be documented by a satisfactory or better progress report from an employer or training provider. Progress reports may include training reports on milestones completed as the individual masters the required job skills, or steps to complete an OJT or apprenticeship program. Increases in pay resulting from newly acquired skills or increased performance also can be used to document progress.
Simply having “satisfactory” progress reports from an OJT employer/supervisor is not sufficient to demonstrate a measurable skill gain. The training outline should have established relevant skill goals and outcomes/benchmarks the participant is working to achieve. The “satisfactory” progress must be related to the participants progression towards the ultimate skill acquisition goal(s) or established benchmarks. Evaluation items such as attendance, makes good use of time, plays well with others, maintains proper appearance/hygiene, etc.; do not measure skill gains. When using progress reports to document MSG, make sure progress reports address skill acquisition.
A properly constructed OJT spanning two program years should not typically need a new training milestone set for the second program year unless objectives/milestones have changed. Measurable progress towards achieving the skills necessary to complete the OJT would typically be the interim (1st program year) goal as demonstrated by the satisfactory progress reports related to skill attainment. Completion of the OJT should be the ultimate (2nd program year) goal demonstrated by successful completion of the OJT (and hopefully retention). Training plans and IEPs are living documents and will be modified when appropriate. Unless the training Plan has changed or modified, there should be no need to establish a new goal or benchmark as this should have been embedded in the original training plan and IEP.
I am trying to make a decision on how to allocate our One Stop Operator costs for year-end close-out. Do those costs only go to WIOA (Adult, Dislocated Worker Youth) since that is what the law that requires or does every program operating at the center get a charge?
As a general rule, all costs should be allocated among all funding sources receiving benefit. This allocation should be a) reasonable (proportional), b) necessary (needed to support the purpose or objective of the funds) and c) allocable (allowable under the funds authorizing legislation or award).
Depending on the scope of work specified in the local OSO procurement and the terms of the partner Memorandum Of Understandings, other (WIOA as well as non-WIOA) funding sources may have responsibilities for an allocable share associated with performing additional duties of a One Stop Operator (i.e., duties beyond the minimum required title I coordination).
The procurement and payment of the OSO is clearly a LWDB responsibility. WIOA required and other locally designated partners may agree to share in an allocable portion of the LWDB cost of operating the one-stop system. Since an OSO procurement is largely salaries, the OSO costs are NOT infrastructure costs and cannot be included in the infrastructure cost sharing agreement. The LWDB cost of operating the one-stop system may be part of “other costs” if agreed to by another partner in the MOU for other shared costs and allocated to the extent the other partner’s program receives benefit and the costs are allowable under the partner’s funding source. See §678.760. Prior to incurring a cost, all funding sources (whether from a required partner or locally designated partner, including other funds under the control of the LWDB) should have entered into an MOU specifying what costs have been agreed to as well as the methodology for allocation and methods for satisfying the obligation (e.g. cash contribution, in-kind service, etc.).
Absent specificity in the local partner MOU, the OSO costs are 100% allocable to the LWDB budget. At a minimum, the Title I Adult Youth and DW programs would share the costs based on the allocable benefit received.
"Receives or in the past 6 months has received, or is a member of a family that is receiving or in the past 6 months has received cash payments under a federal, state, or local income based public assistance program" is one way to establish "Low Income" for eligibility purposes. If a youth is part of a household who receives rent assistance from the public housing authority, do they meet this criterion of low income?
An individual who received or is a member of a family receiving HUD housing assistance in the past six months satisfies the WIOA definition of LOW INCOME.
The definition of low income under WIOA at Section 3(36)(A)(i) includes an individual who received or is a member of a family that is receiving or in the past 6 months has received assistance through the supplemental nutrition assistance program established under the Food and Nutrition act of 2008, the program of block grants to states for TANF, or supplemental security income under the Social Security Act or State or local income based public assistance.
HUD housing assistance is considered to be 'local income based public assistance' since the amount of the assistance is based on a formula that uses a percentage of the median income used for housing in a local county or metropolitan area.
"Receives or is eligible to receive a free or reduced price lunch" is one way to establish "Low Income" for Youth eligibility purposes. Does this have to be current receipt/eligibility or within the last six months, similar to TANF, SNAP, SSI, etc.?
Free/reduced School Lunch criteria for establishing Low Income applies to current receipt/eligibility of the individual applying for service.
In response to the public comments received following publication of the interim final rule, DOL looked at the scenario of a recent HS grad whose family member is receiving free/reduced lunches and whether the OSY is eligible, by proxy, due to family eligibility. DOL noted the stated WIOA criteria is for the individual's eligibility to receive free or reduced lunch and according to the Richard B. Russell National School Lunch Act, an individual must be enrolled in school to be eligible.
Are any 'exiters' exempted from common performance measures under WIOA as they were in WIA?
As of October, 2016, guidance on Performance Measures is preliminary and incomplete. However, Line 923 of the PIRL instructions list seven (7) reasons for exit which should exempt an individual from being a performance counter.
Record 01 if the participant exits the program because he or she has become incarcerated in a correctional institution or has become a resident of an institution or facility providing 24-hour support such as a hospital or treatment center during the course of receiving services as a participant.
Record 02 if the participant exits the program because of medical treatment and that treatment is expected to last longer than 90 days and precludes entry into unsubsidized employment or continued participation in the program.
Record 03 if the participant is deceased.
Record 04 if the participant exits the program because the participant is a member of the National Guard or other reserve military unit of the armed forces and is called to active duty for at least 90 days.
Record 05 if the participant is in the foster care system as defined in 45 CFR 1355.20(a), and exits the program because the participant has moved from the area as part of such a program or system (Youth participants only).
Record 06 if the participant, who was determined to be eligible, is later determined not to have met eligibility criteria. (ineligible)
Record 07 if the participant is a criminal offender in a correctional institution under section 225 of WIOA.
As currently stated in the PIRL Instructions, these categories are slightly different than the 5 exit exemptions in WIA. Further guidance should be available in the coming months.
Does the local area need to define what constitutes "Pattern of Failure" for the purposes of an OJT? The biggest issue is determining "good cause" and how that factors into the pattern of failure.
Every policy should define its terms, otherwise the policy could be unenforceable and therefore meaningless. If the terms have no meaning, neither does the policy.
A percentage rate of failure for defining a "pattern of failure" with a provision for an adequate sample to establish validity is common.
If an employer has had but one OJT and it failed, that is not an adequate sample to establish a valid pattern in and of it-self. A 40% failure rate with a sample of 10 is highly suspect.
Whether a termination is for "good cause" or not, a pattern of failure is still a pattern of failure and needs to be corrected or avoided. Attempting to define the cause as "good" or otherwise should probably be avoided.
In crafting a policy, give yourself sufficient flexibility to operate. This will necessitate giving yourself some arbitrary discretion in decision making.
You may want to say any failure attributable to working conditions, allegations involving violation of State or Federal safety/wage/civil rights laws or any failure rate exceeding a certain percent of a minimum number of trainees is a pattern of failure.
Give yourself discretion to make exceptions (approval) based on management level review of positive action taken to identify and correct the cause of the failure.
Give yourself discretion to make determinations (denial) based on identifiable factors existing with either the employer or trainee that, if not addressed, would negatively impact the prospects of success.
When an individual is enrolled based on a layoff notification and the other required criteria, what happens if that individual is recalled back to work or decides to quit before the layoff date? I understand that at the time of enrollment the individual is eligible, but would the cost of any training provided be considered as a disallowed cost?
An individual (adult, Youth, DW, etc.) is determined eligible based on the facts presented on the day of enrollment. That eligibility holds until the individual exits. A new eligibility decision must be made for any subsequent enrollment based on the facts at the time of the subsequent enrollment.
Except for certain criminal acts (fraud, embezzlement, etc.) funds expended for appropriate services provided to an otherwise eligible individual are generally allowable costs provided they pass is the three-part test of:
(2) Necessary, and
In the scenario(s) you have provided, the issue is not with the individual's eligibility but may potentially be with the appropriateness (necessity) of/for the training service.
Generally speaking, training services are provided to eligible individuals in need of such services to enter/re-enter the labor market or maintain employment leading to self-sufficiency. If a lay-off were cancelled, an individual recalled or an individual quite their position prior to lay-off, one would need to answer the question of appropriateness/necessity before providing further services.
There may be any number of factors unique to a specific case which may justify the expenditure.
- An individual facing certain layoff may need to quite in advance of the lay-off date to start training in a timely manner; realizing eligibility for other benefits, such as U.I., could be impacted.
- A layoff may be cancelled only to postpone a certain layoff or closure for a short period of time.
- An individual may be recalled for the employer's benefit to address a temporary staffing or skill shortage during a lay-off or closure.
Generally speaking, there is far too little documentation of appropriateness/necessity for services in the files. At a minimum, some cursory review of appropriateness is recommended on every eligible individual beginning a new service or service cycle. In a case that might, could or should be questioned local areas are strongly encouraged to exercise due diligence in documenting and justifying the necessity for expending funds.
At what point does the IEP become invalid for the purposes of youth eligibility? We have an OSY who graduated HS and was on an IEP during HS. At what point do we not use the IEP?
The Individual Education Plan (IEP) is a requirement under Part B of the Individuals with Disabilities Education Act (IDEA) which specifically provides funding and guidelines for K-12 services.
Some important provisions governing an IEP under IDEA include:
1. Must be developed within 30 days of diagnosis/determination a child is tested and determine eligible for services under IDEA
2. Jointly developed with school, parents and service provider(s)
3. Details the services, accommodations, and supports to be provided along with any modifications
4. Establishes annual goals and must be reviewed and updated at least annually and more often if requested
5. Child's disability must be re-evaluated for continued presence of the disability at least triennially and more often if requested.
The IEP is specific to a child's K-12 education and there are three events which generally limit the applicability of an IEP:
1. No longer to subject to K-12 education within the state (either aged out or graduated)
2. Longer than 1 year since last annual goal/objective review/update
3. Longer than 3 years since last disability evaluation
For WIOA purposes, a former IEP may be used to document a disability as the third of three parts in the OSY eligibility found at Sec.129(a)(B)(iii)(VII) under the following two conditions, both of which must be met:
1. The IEP must contain documentation of the disability having been evaluated and confirmed within the last 3 years from date of application for WIOA services
2. The most current IEP update or modification cannot document the disability is no longer present
The other two parts of the OSY eligibility which must also be met are:
1. Not attending any school (as defined under State law), and,
2. Not younger than age 16 or older than age 24.
Aside from eligibility, an IEP is important for designing and coordinating a comprehensive delivery of appropriate services for In-School Youth. Unfortunately, an EIP would have very little to no additional benefit (aside from eligibility) for OSY due to the shortened (1 year) shelf life of the annual goals and objectives.
Under WIOA, one of the categories of Dislocated Worker is recently separated veteran - what is the timeframe after honorable or general discharge that allows a veteran to be considered 'recently separated'?
Recently Separated Veteran is not specifically identified as an eligibility category of Dislocated Worker in WIOA at section 3(15). DOL does reiterate the Department's long standing policy that separating/exiting service members (other than dishonorable) qualify as dislocated workers in the proposed rules at 20 CFR Section 680.660. Proposed §680.660(a) clarifies that a notice of separation, DD-214, or other appropriate documentation showing a separation or imminent separation qualifies as a notice of termination or layoff required by WIOA sec. 3(15(A)(i). §680.660(b) clarifies a separating service member meets the eligibility for unemployment compensation requirement of WIOA sec 3(15)(A)(ii)(I) or (II). §680.660(c) clarifies a separating service member meets the unlikely to return criteria of WIOA sec. 3(15)(A)(iii). A 'separating veteran' includes those 'recently separated'. WIOA section 3(63)(B) defines Recently Separated Veteran as any veteran who applies for participation under this Act within 48 months after discharge or release from active military, naval, or air service.
Additionally, proposed §680.650 reiterates veterans receive priority of service in all DOL funded training programs for which the veteran is otherwise eligible. This section (as does §683.230) goes on to state amounts paid while on active duty or amounts paid by the Department of Veterans Affairs (VA) for vocational rehabilitation, disability payments, or related VA funded programs are not considered income for the purposes of low-income eligibility or low-income priority determinations.
For Youth that are past the age of mandatory school attendance, but are attending Alternative schools to complete their diploma on their own schedule and are not required by the School District to attend - must we consider these Youth to be In School? Even though their attendance at the alternative school is limited to just a few hours a week or whatever set-your-own-pace schedule that the alternative school allows?
A youth, whether past the age of mandatory attendance or not, attending any school (including an alternative school) is considered in-school (ISY). In Kansas, local school boards have discretion in the design of local Alternative School programs including frequency and hours of attendance policies, schedule, etc.. To the extent local school board policy allows limited hours of attendance, set-your-own-pace, etc.; students attending on that basis are in-school.
For those same Youth, no longer required to attend High school, is it permissible to enroll them in a naturally occurring break of the Alternative School's own schedule - for instance, a summer period where no classes are held, as an Out of School Youth, even though they might have attended the Alternative School in a prior time period?
An otherwise eligible youth not younger than 16 and not subject to compulsory attendance may be determined to be an out-of-school youth (OSY) when, at the time of WIOA eligibility, they are not enrolled in any school. If a school (e.g. alternative, post-secondary, etc.) requires a new enrollment for each term (e.g. quarter, semester, school year, etc.) and the youth has not enrolled/re-enrolled for the current or upcoming term, the youth is out-of-school.
A youth subject to compulsory attendance and not younger than 16 must not have attended any school for the most recent completed school year quarter or met one of other conditions of 681.210(c) to be considered out-of-school. Simply not enrolled/re-enrolled, if required, is insufficient when the youth is subject to Kansas compulsory attendance.
For Youth that are High School graduates or GED Completers and are now attending Post-Secondary education, do we consider these Youth to be In School only if the WIOA enrollment occurs during a time when they are enrolled in classes? Again, what if the Youth is in a naturally occurring summer break between Post-Secondary programs and is enrolled into the WIOA Youth program. Are they still considered to be In-School? Is any enrollment in Post-Secondary considered to be In School? Or is there a distinction made between a Youth taking one class on 'underwater basket weaving' at the tech college, and a Youth enrolled in 12 credit hours or more?
A youth not subject to compulsory attendance (including High School graduates or GED completers) may be determined to be an out-of-school youth (OSY) when, at the time of WIOA eligibility, they are not enrolled in any school. If a school (e.g. alternative, post-secondary, etc.) requires a new enrollment for each term (e.g. quarter, semester, school year, etc.) and the youth has not enrolled/re-enrolled for the current/upcoming term, the youth is out-of-school.
Enrollment limited to only self-improvement, recreational, leisure-time interest, or "hobby" classes which do not lead to the acquisition of marketable skills, academic gains or recognized occupational credentials are not considered enrollment in school.
Is a high school dropout taking an "online class" for diploma completion an ISY/OSY?
Whether a class (or combination of classes) is delivered "on-line" or not, is not relevant to the determination of ISY/OSY. However, if the provider of classes (either on-line or at a physical location) is a provider of Adult Education under Title II, Job Corps or YouthBuild programs, the program of service is not considered to be a school for the purposes of WIOA. Youth enrolled in WIOA Title II services are OSY.
In Kansas, WIOA Title II funded activities are provided through 16 community and technical colleges, five school districts, and two community-based organizations. Site information is available at:http://www.kansasregents.org/academic_affairs/adult_education/adult_education_centers
If a CEO is "the chief elected executive officer of a unit of general local government," is the "State Policy" changing this definition to "board of county commissioners as a whole" just for counties and city governments where a mayor is not elected?
If this is the case, then if the city has a mayor that is elected, the mayor is "the chief elected executive officer," correct?
In Kansas, a unit of general local government likely references the counties and municipalities that have taxing and police powers. A chief elected official could include a mayor, county or municipal council member, or county commissioner if that individual has been elected as the head of government with authority over those powers. However, if the unit is governed by a multi-member body (council or commission), that body is the chief elected official and should select an individual from among its elected members to act on behalf of the group.
State policy has interpreted the chief executive officer for a commission style of government to be the board as a whole and not an individual for about the last fifteen years. This is not a change in the federal definition. In a commission style of government, each commissioner is elected (equally) by the citizens to serve. There is no single elected executive, but a group of executives; typically 3, 5, or 7 (per Kansas statute). A commission will typically select a Chair to preside over meetings but this chair is not elected by the citizen voters. Therefore, the commission as a whole is the CEO for that unit of government.
The same applies to a city that has a council or commission style of government, opposed to a mayoral style.
If a city elects a mayor at large (by the voters and not the city council), the mayor is the chief elected official of that unit of government.
If there is no "greater than 100,000" population in the WIOA, can city governments have membership on the CEOB? If they can, how would they know about it?
There has never been a "greater than 100,000 population" as part of the definition of a 'unit of general local government'; including JTPA and WIA. 100,000 was the population threshold for requesting designation as a local area (or its equivalent) under CETA, JTPA and WIA. There is no population threshold for requesting designation under WIOA. The 100,000 threshold was misapplied early in workforce development by local areas to the CEO (and prior to that, LEO) process.
Any political subdivision of the State of Kansas (regardless of size) that has the following four powers has the opportunity to participate in the CEO agreement: 1) Levy taxes; 2) Spend funds; 3) General corporate; & 4) Police
To ensure units of general local government and the respective CEOs are afforded the opportunity to be involved in the local workforce development system, every effort should be made to notify the CEOs regarding their WIOA responsibilities and the new workforce development initiative. This may be accomplished by direct letter, meetings, newspaper announcements, or other means of notifying CEOs of the need for their involvement. While the participation of CEOs is voluntary, it is essential that those units of general local government, who are interested in participating, be allowed to participate.
Successful workforce development systems engage as many interested parties and entities as possible at every stage of the process and are therefore designed to be as flexible and inclusive as possible. A community or interest engaged in the process will be more engaged and supportive of the system leading to overall success. A CEOB seating a CEO from every county as well as every community in every county in even the smallest Local Workforce Development Area could be unwieldy. This is the purpose of the CEO agreement. The CEO Agreement is the written understanding and agreement by and among the various interested CEOs of the Local Area as to how the responsibilities will be accomplished as well as how the opportunity to participate will be afforded. Commonly this involves the CEO's agreeing to a representative selection process to the CEOB and as well as specification of specific named roles. It may be difficult to finalize the CEO agreement before the parties have met.
If, as you have stated, "It is up to that board of county commissioners to select a representative from among themselves." Does this mean other persons holding elected offices of the county or city government are not permitted to serve on the CEOB under WIOA?
The intent of a CEO under workforce investment laws has been to have the elected official(s) responsible for exercising the powers of taxation, spending, general corporate and police (ref. WIOA Sec. 3(62)) as active participants and therefore accountable for the provisions of workforce services. I do not believe any elected county/city office in Kansas has the four powers specified in federal statute other than a County Commission, City Council/Commission, or Mayor. This has not changed from previous workforce legislation, including JTPA and WIA.
Will we run afoul of the Federal concept of "You can add, but not subtract" with regard to policy, if we use the 9th/10th grade level for determining Basic Skills Deficiency when the Federal Guidelines say 8th grade? Specifically, by expanding the definition to 9th/10th grade we will allow a greater number of Youth to be potentially BSD and make it easier for High School grads who are low income to meet the BSD requirement and thus eligibility for the WIOA Youth program.
As stated, YES, this would run afoul.
The definition of Basic Skills Deficient is established in WIOA statute at Sec. 3(5). The term ''basic skills deficient'' means, with respect to an individual—
(A) who is a youth, that the individual has English reading, writing, or computing skills at or below the 8thgrade level on a generally accepted standardized test; or
(B) who is a youth or adult, that the individual is unable to compute or solve problems, or read, write, or speak English, at a level necessary to function on the job, in the individual's family, or in society.
The statutory definition has two conditions (A & B), either of which can be met to determine an individual as "basic skills deficient".
The first condition (A) applies only to youth and establishes the 8th grade level (or below) as the standard for reading, writing, or computing.
The second condition (B) applies to either an adult or youth and relates to the individual's ability (or lack thereof) to compute or solve problems, or read or write or speak English at a level necessary to function on the job, in the individual's family, or in society.
You cannot alter the parameters of a definition established by statute through local policy. Specifically, you can change/modify/expand the 'at or below 8th grade' established in condition (A).
In Condition B ". . . a level necessary to function . . ." is not otherwise defined in statute or regulation and therefore left to the local area or State to define. The statutory definition assumes the local area has some consistent and equitable policy/process for determining whether or not an adult or youth has the ability to compute or solve problems, read, write, or speak English at a level necessary to function in the family, society or on the job.
It is within a Local Board's responsibilities to define what a "functioning" level would be for each of the basic skills (computing, reading, writing, English) through the establishment of local policies/procedures. Also, the level may be different depending on whether one is referring to its application to family, society or the job and the specific job/career, the participant has chosen and is identified in an individual employment plan or career ladder.
Since a primary purpose of WIOA is to provide pathways to the middle class through employment, the basic skill requirements for employment should be defined for the local labor market(s). This will necessitate a carefully developed and well substantiated local policy and processes for making the determination. At a minimum, a carefully developed and substantiated policy will include: A reasonable, replicable methodology for establishing a functional level for the skill on the job, in the family or society; proof of the required level of competency for the context,
1. A consistently applied and equitable means (for all populations) of establishing a participant's level of skill; documentation of skill deficiency as supported by use of standardized assessments,
2. A process for making objective determinations; demonstration the decision is made to meet an established need of an individual within the labor market, family or society and not made to increase enrollment; and,
3. A process for assuring skill deficiencies are addressed as part of the individualized plan of service
Documentation could be established by any one or several reliable means including bona fide occupational job qualifications in the region, standardized skills assessments, standardized job readiness assessments, etc.
Although this will not always be the case, if the local labor market requirements were such that a level of proficiency equated to higher than 8th grade in any of the areas of computing, reading, writing, or English to function on the job; the local area would still be in compliance with part two of the federal definition of Basic Skills Deficient as ". . . a level necessary to function . . ." is not otherwise defined in statute or regulation and therefore left to the local area or State to define.
If a local area can reasonably establish (with valid and replicable data and formal standardized assessments) that an individual's ability to compute or solve problems, or read or write or speak English at a level necessary to function on the job, in the individual's family, or in society is deficient, you have not altered the definition of the second condition (B).
Adults in WIOA – do they have to be low income to receive career services and/or training services?
Short answer No. However, recipients of public assistance and other low income individuals are included in the WIOA priority of service requirements (§680.600).
The biggest difference between WIA priority of service and WIOA priority of service is that with WIA it was required when funds are limited with WIOA it is required all the time. Priority of Service is the new normal under WIOA and not the exception. The priority groups (recipients of public assistance and other low income; veterans/eligible spouses) has been expanded under WIOA to include those with defined basic skills deficiencies.
Local areas must establish criteria for applying priority of service. In drafting local priority of service policy/procedure, please keep in mind that that priority of service is NOT the same as eligibility for service. Eligibility factors limit or restrict service to only the eligible population. Priority factors assure resources are utilized in a manner consistent with a stated focus or emphasis of the enacting legislation. TEGL 3-15 suggests the following priority be incorporated into a local policy/procedure:
1. Veteran/eligible spouse who are recipient of public assistance, low income or basic skills deficient.
2. Non- Veteran/eligible spouse who are recipient of public assistance, low income or basic skills deficient.
3. Veteran/eligible spouse who are NOT recipient of public assistance, NOT low income or NOT basic skills deficient.
4. Non-Veteran/eligible spouse who are NOT recipient of public assistance, NOT low income or NOT basic skills deficient.
In drafting local policy, local areas may add to (but not subtract from) the priority factors described in statute. Locally established priorities may include individuals who are not recipients of public assistance, low income or basic skills deficient but must preserve the priority to veterans and eligible spouses (§680.600(c)). While a properly constructed and applied priority of service will undoubtedly be reflected in the demographics of the overwhelming majority of participants served, it will not dictate or necessarily reflect exclusivity to any particular eligible population.
Is there a requirement that youth participating in unpaid work experiences be covered by worker's compensation insurance?
Whether worker's compensation insurance is required for competitively procured work experiences as defined WIOA Sec. 129 is a question of law and/or the terms of the RFP.
The local board should seek private legal counsel to fully address and understand their responsibility under the law.
Although workers compensation coverage may be optional for volunteers and unpaid internships in a structured workplace learning environment, an important consideration for the local board in designing their RFP should be assuring both the Youth Participant and the local board are protected to the extent practical should an adverse event occur. Any local board's long history and past experience with paid internships and work experience will most likely demonstrate it is just a matter of (a short) time before a youth participant is injured from a workplace accident. The demographics of the population served is among the least likely to have adequate health care coverage due to their economic conditions. In the event of a substantiated claim against the local board (even when services are subcontracted) the Chief Elected Official(s) would be the most likely source of settlement funding. As the entity ultimately responsible for funds, the Chief Elected Official(s) must be a party to any informed decision regarding any requirements for insurance coverage(s).
For workplace learning/training provided through WIOA youth workforce investment activities, Workers Compensation insurance is a reasonable and allocable program cost fully reimbursable to the contracted Youth Service Provider. From a program guidance prospective, there is no reason to not require it as part of the RFP and award.
Are standing committees of the local board required?
SEC. 107 Local Workforce Investment Boards
(A) In General
…….."At a minimum, the local board may designate each of the following;"
"May" seems to indicate flexibility, but "at a minimum" makes me question.
The paragraph which concludes with the partial sentence cited, begins with the sentence:
"The local board may designate and direct the activities of standing committees to provide information and to assist the local board in carrying out activities under this section." Ref. 107(b)(4)(A)
'May' is permissive while 'must' is prescriptive the same as 'should' being permissive while 'shall' is prescriptive. The complete citation uses both "may" and "shall".
The permissive form gives you permission, or allows you, to implement or follow the guidance should you so choose. The prescriptive form requires the action and you have no choice.
In this particular provision, while standing committees are permitted/allowed and not required; there does appear to be the presumption that local boards will take advantage of the opportunity out of practical necessity for conducting the tasked board business functions (of which twelve separate functions are delineated in 107(d)) in an inclusive and open environment consistent with the sunshine provisions of 107(e). A board with a more effective and efficient means of engaging the members, partners and stakeholders in board discussions and decisions is not required to utilize committees. However, a standing committee by any other name (e.g. workgroup, task force, etc.) is still a committee and subject to the statutory composition requirements including: 1) [shall be] chaired by a member of the board, and 2) [shall] include non-board members with appropriate experience and expertise.
Page 6 of TEGL No. 19-14 implies that full implementation of the WIOA youth program begins in April when the WIOA youth allotments are distributed. Does WIOA youth implementation begin in April or on July 1, 2015?
While TEGL No. 19-14 says "States will receive their first WIOA allotment for the youth programs in April 2015 and will begin full implementation of WIOA for the Youth Program at that time," full implementation of the WIOA youth program begins on July 1, 2015. The PY 2015 WIOA youth allotment is distributed and available in April 2015; states are able to use those resources to begin preparation for WIOA youth implementation on July 1, 2015. ETA will be issuing further guidance and providing technical assistance to assist in this effort.
A training provider located in California has an interest in becoming an Eligible Training Provider (ETP) in the State of Kansas. They were referred to the Kansas Board of Regents per the new State ETP Policy but were told KBOR approval was not applicable since the training was provided out-of-state. Should this provider submit information to become an ETP in Kansas even though they do not have KBOR approval?
Kansas' ETP Policy is applicable to those entities providing training within Kansas or in border communities outside the state within a normal and reasonable commute. Those entities providing training within the state, whether at a physical location or by virtual means need initial approval by KBOR to provide that instruction in Kansas before applying for inclusion on the Kansas Eligible Training Provider List (ETPL). Providers of training located in border communities outside Kansas may use the applicable border state's ETP approval at the discretion of the local board.
Kansas has no provision to include providers on the Kansas ETPL for training which would require the customer to temporarily relocate or travel beyond a normal and reasonable commuting distance in order to participate in training.
Since WIOA is effective on July 1, 2015, can current contracts for Youth Program Elements under WIA be extended beyond July 1, 2015 when allowed under a current procurement.
If a local area is considering an extension of competitively procured WIA Youth Program Elements, the Board should review the Statement of Work and Scope contracted under the original procurement and compare that to any modification in the Statement of Work and Scope that would be required to make the contract(s) WIOA compliant. The program elements under WIA are all included and required in WIOA, but WIOA does expand the scope and the number of elements (4 additional required that may or may not have been in the original procurement), the population to be served (expands the definition of Out-of-School Youth) and the minimum/maximum percent of funds expended on In-School Youth vs. Out-of-School Youth. The review should include language any applicable attachments or referenced documents including the original RFP/solicitation, the Providers Response, and the language in the executed contract(s). If a necessary modification in a contract constitutes a significant change in the Statement of Work or Scope of the contract, then a new procurement would be necessary. As an example, you cannot put out an RFP for company car, contract for an economy sedan and then modify the contract to purchase an SUV. A non-significant change would include changes such as substituting WIOA for WIA, extension for WIA carry-over participants only, etc.
You may want to include your WIA Youth Council (or WIOA Standing Committee identified in Sec.107(b)(4)(A)(ii), if applicable) in the review and decision process and also expand the conversation to looking at the Local Area's existing program design for suitability under WIOA. If a decision is made to change/adjust program design, it may be found that the current procurement does not serve that purpose and a new procurement would be necessary.
Contracts are legal documents and legal counsel should be consulted on any modifications/changes.
What is the official implementation date for board structure under WIOA?
The effective date (or official implementation date) for board structure under WIOA is July 1, 2015.
Section 506(a) of WIOA establishes the statutory effective dates for the provisions of WIOA (including its amendments to other Acts) as the first day of the first full program year after enactment (July 1, 2015), unless otherwise accepted.
Two exceptions to this effective date are provided in 506(b) for Performance Accountability and 506(c) for State and Local Plans. Even though both exceptions provide for the use of their respective WIA provisions during the first full program year (July 1, 2015 – June 30, 2016); both exceptions also specifically state the exceptions do not include the WIA definitions of the terms "local area", "local board", "one-stop partner" and 'State board". The WIOA definitions for "local area", "local board", "one-stop partner" and 'State board" (rather than WIA) are applicable for year one (beginning July 1, 2015). (Sec. 506(b)(2)(B) and Sec. 506(c)(2)(B)).
WIOA retains a grandfathering provision for those State Boards that were in effect before the enactment of WIA and a grandfathering provision for Local Boards. USDOL E&T will continue to analyze changes to the State and Local boards and will issue additional guidance as appropriate.
If Kansas or a local board elects to be an 'early implementer, what would the effective date for implementing board structure be?
Details of early implementation, including but not limited to, specific elements of WIOA selected for early implementation, goals and objectives of early implementation, and time frames for early implementation will be established through negotiations with USDOL E&T regional offices.
Commerce currently envisions any early implementation of board structure to be a transition activity which would allow for the orderly transition (e.g., filling vacancies through attrition) from a WIA or grandfathered JTPA board to a WIOA compliant board in the months leading up to July 1, 2015. This would not preclude a board from the flexibility of establishing a more aggressive transition or time frame.
Definitive discussions with DOL on early implementation have not yet begun. It is Commerce's intent to include appropriate board administrators early in discussions impacting their respective decision to 'early implement' before any final commitments are made.
Is the waiver of WIA Section 101(31)(B) that permits states to reimburse the employer on a graduated scale based on the size of the business still in effect and available to local area?
Under the waiver, the following maximum reimbursement rates are allowable:
1. Up to 90% for employers with 50 or fewer employees, and
2. Up to 75% for employers with more than 50 but fewer than 100 employees.
3. For employers with 100 or more employees, the current statutory (50%) limit will continue to apply.
An extension of the waiver for WIA Section 101(31)(b) allowing the described reimbursement rates for OJT was approved through June 30, 2017 as part of the WIA State Plan. This waiver will be in effect through the expected duration of WIA. This waiver is not applicable to future WIOA funded activities.
For WIOA, effective July 1, 2015 (or any applicable 'early implementation' date) and subject to approval by the Governor (State Board) and the respective Local Board, a Local Area may raise the maximum limit for WIOA funded OJT reimbursement from 50% to 75%. The local area must take into consideration:
Quality of training and advancement opportunities
Any other factors the governor or local board may put into place.
Ref. HR 803 Sec. 134(c)(3)(H)
As State Board Policy is developed for WIOA, an opportunity for public comment will be available. Any policy approved by the State Board will be posted in the Policy Section of this site.
Kansas Department of Commerce Policy 3-14-03, WIA Eligibility Determination and Documentation, states that case managers are to use one of the five methods below to determine "unlikely to return to previous occupation or industry."
Out of the 5 methods stated in the policy, there are really only 2 that can be used.
1. There are currently no open job orders or there are excess registrants (10 or more) for available jobs the applicant is qualified for within the applicant's primary occupation or industry and within a reasonable commuting distance of where the applicant lives, or
This is the one that we use most. I have no questions with this option.
2. There is a recent decrease in the number of job orders listed with the local job center in the area for the occupation, or
Locally, we do not track month to month the number of job orders we have for a specific occupation. There is not a way in the system to tell how many vacancies you have from month to month. You can only see what is available currently. I'm hoping AJLA can add a feature to KANSASWORKS to allow the use of this option.
3. There are ten or more dislocated workers currently seeking employment within the same labor market area in the same industry or occupation as the applicant, or there is not a way in KANSASWORKS to track a dislocated worker's occupation at dislocation. KANSASWORKS does capture that information, but it is not included in any type of report.
4. Kansas Department of Labor, Labor Market Information Services listing the industry or occupation as declining, or
This method is easy enough to utilize. I have no questions with this option.
5. Local Chamber of Commerce or economic development agency has determined the occupation or industry is declining, OR documentation of two or more plant closures (including the applicant's layoff notice, if applicable) that impacted workers in the same occupation in the same labor market area within the past six months.
The Local Chambers of Commerce and economic development agency use the Kansas Department of Labor list, so that negates that portion of #5. The plant closure part is easy enough to explain to staff.
Policy guidance on 'unlikely to return' is intended to provide flexibility, rather than constraint. Not all local areas or locally available labor market information sources track data in the same way or in the same level of detail. Some have more data, others less. If you have (local) data available, the guidance allows you to use it. On page 5 of Policy 3-14-03, Unlikely to Return Issues, guidance is provided stating: "A determination of whether an individual is likely to return will be based upon the best available information (emphasis added) from the worker, employer and labor market data at the time the layoff notice or closure is received."
The section on Acceptable Documentation you quote from on page 15 of the same policy also states, in part: "Determination by case manager and included case notes or case file notations indicating any one of the following"
2. There is a recent decrease in the number of job orders listed with the local job center in the area for the occupation
Typically, a local area will use the expertise of the Wagner-Peyser staff who watches the job orders more closely. W-P usually knows what employers are hiring or not and when a larger listing for multiple employees has closed (hopefully due to filling). For example, they know if ACME Widgets had an order for 20 Fitters that may have been open recently, but is now closed creating a decrease in the overall number of current openings. If you do not have access to empirical data, use anecdotal or common knowledge available to you from local intelligence may be added to the case file or case notes by the case manager.
3. There are ten or more dislocated workers currently seeking employment within the same labor market area in the same industry or occupation as the applicant
Local Administrators may either run an ad hoc report from KANSASWORKS using participant ID and industry/occupational code (probably a labor exchange activity of work sought, not necessarily prior occupation) or the collective knowledge of your DW case managers knowing how many people they have on their caseloads looking for work in that industry (or occupation). This is easiest when you have had a larger (10+) layoff within the labor market area and then a smaller employer in a related industry laid-off one or two similar workers. If an employer or multiple employers have laid-off a particular skill set within a reasonable time frame, a subsequent single lay-off with the same or similar skill set will likely result in all the workers looking for substantially the same kind of work. If the cumulative number of workers is ten or more, the case manager may use this local intelligence in making a determination of "unlikely to return" and add that explanation to the case notes or case file.
5. Local Chamber of Commerce or economic development agency has determined the occupation or industry is declining, OR documentation of two or more plant closures (including the applicant's layoff notice, if applicable) that impacted workers in the same occupation in the same labor market area within the past six months.
There are local/regional economic development and workforce development groups in Kansas that are more aggressive than others in tracking their own LMI data based on current local intelligence and methodology. If you have such an organization within your local area, you can use their reports/analysis.
It is important to remember all options may not be available to every office/local area. This is why multiple options are allowed.
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