Could the Department of Social Services contract with the Center for Employment Testing (CET) for job-skills training, even though CET accepted enrollees without high school diplomas and charged tuition above the state-supported institution rate?

Plain-English summary

The Department of Social Services had contracted with the Center for Employment Testing (CET) to provide training to JOBS Program participants. Two facts about the contract raised questions: CET enrolled participants who did not have a high school diploma or its equivalent, and CET's tuition and fees exceeded the rates charged at the local or regional state-supported institution. Did either of those facts violate the administrative rule at 10 N.C.A.C. 39D.0303?

Senior Deputy AG Ann Reed and Special Deputy AG Gayl M. Manthei said no, because the administrative rule applied only to post-secondary education, and CET was not a post-secondary education program.

The rule, in the form it existed before November 1, 1995, allowed payment for post-secondary education only if the participant had a high school diploma or equivalent, the program was related to the participant's employment goal, and the determination was made by an educational assessment. Subsection (b) limited tuition payment to the local or regional state-supported institution rate. The whole rule operated within the category "post-secondary education."

The DSS JOBS Program Policy Manual defined post-secondary education as enrollment in a bachelor's degree program at a four-year institution, a college-transfer program intended for a bachelor's degree, or a graduate degree program. CET did not offer any of those. CET was a Job Skills Training program, which the manual defined as "substantive, vocational training in technical job skills and equivalent knowledge and abilities in a specific occupational area."

Because the rule applied only to post-secondary education and CET was Job Skills Training, the rule did not apply.

Job Skills Training had its own qualifications, but they came from the JOBS Manual, not from the administrative code. The manual said participants in Job Skills Training programs did not need a high school diploma if the diploma was not required for their employment goal. The manual also said payment of tuition and fees for Job Skills Training was limited to the local or regional state-supported institution rate. But the JOBS Manual is agency policy, not a rule adopted under the APA. It does not have the force of law. If the CET contract did exceed the manual's tuition cap (DSS believed it did not, when the various components were broken out), the consequence was an internal policy violation, not a legal violation.

The opinion ended with the standard self-evident dismissal of related rule-application questions: since the rule does not apply, downstream questions about the rule's effect drop out.

Currency note

This opinion was issued in 1995. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The federal JOBS Program was substantially reshaped by the 1996 federal welfare reform legislation (TANF), and the NC implementing program (now Work First) operates under a different framework. The administrative rule at 10 N.C.A.C. 39D.0303 has been amended or superseded. The current rules for state JOBS-successor programs are in different Title and Subchapter locations. Anyone advising a current participant or contractor should pull the current NC TANF/Work First rules, the current federal TANF regulations, and any later AG opinions on the same questions.

Common questions

Q: What was the JOBS Program?
A: A federal welfare-to-work program established under Title IV-F of the Social Security Act, requiring AFDC recipients to participate in education, training, or work activities. NC implemented JOBS through DSS. The program included a mix of post-secondary education, job skills training, work experience, and basic education.

Q: Why does the post-secondary-vs-Job-Skills-Training distinction matter so much?
A: Because the federal and state rules attached different requirements to each. Post-secondary education came with the diploma and tuition-cap rules. Job Skills Training was treated as more flexible, recognizing that vocational training did not necessarily require a high school diploma and could be priced differently from college tuition. The AG's analysis put CET squarely in the Job Skills Training bucket and out of reach of the post-secondary rule.

Q: Why does the JOBS Manual not have "the force of law"?
A: Because it was not adopted as a rule under the NC APA. The APA requires notice and comment, rules-review-commission review, and other procedural steps before agency pronouncements bind regulated parties as law. An internal policy manual not put through that process can guide agency behavior, but it does not create legal obligations enforceable against contractors or participants in the same way as an adopted rule.

Q: Could DSS have written a stricter contract anyway?
A: Yes. DSS had contracting flexibility. If DSS wanted to apply the post-secondary education limits to Job Skills Training contracts too, it could have written them in. The AG opinion addressed only whether the existing administrative rule reached the CET contract, not whether DSS should have negotiated different terms.

Background and statutory framework

The federal Family Support Act of 1988 created the JOBS Program (Job Opportunities and Basic Skills Training Program) as a major component of welfare reform. States operated JOBS to move AFDC recipients toward economic self-sufficiency through a mix of education, training, and work activities. The federal regulations at 45 CFR Part 250 set the framework; NC adopted implementing rules in 10 N.C.A.C. 39D.

The structural choice in the rule (separating "post-secondary education" from "job skills training") reflected a policy judgment that traditional college programs needed more gating (diploma prerequisite, tuition cap) than vocational training programs. The 1995 question to the AG was whether that gating reached a particular contract with a non-college provider, and the AG read the rule literally to say no.

Citations

• 10 N.C.A.C. 39D.0303 (post-secondary education criteria in JOBS Program, pre-November 1, 1995 form)
• 45 CFR 250.1, 250.46 (federal JOBS Program definitions referenced by NC rule)

Source

• Landing page: https://ncdoj.gov/opinions/state-contract-center-for-employment-testing-job-skills-training-program/

Original opinion text

• CET accepted enrollees that did not have a high school diploma or equivalent, and
• the tuition and fees charged by CET exceeded those charged at the local or regional state-supported institution.

The answer is yes. The question has apparently arisen because of 10 N.C.A.C. 39D.0303 which, prior to November 1, 1995 read:

POST-SECONDARY EDUCATION

(a) The criteria for determining when post-secondary education, as defined in 45 CFR 250.1 and 45 CFR 250.46, is appropriate for JOBS participants shall be:

(1) A participant has earned a high school diploma or its equivalent;
(2) The program of study offered at the post-secondary institution is directly related to the participant's employment goal as defined in the JOBS employability plan; and
(3) the determination of appropriateness is made by an educational assessment.

(b) Payment for tuition and fees shall be no more than the tuition and fee rates for the local or regional state-supported institution.

By its terms, the rule applies only to post-secondary education. Post-secondary education is defined in the DSS JOBS Program Policy Manual ("JOBS Manual") as participation in one of the following educational activities:

• Enrollment in a bachelor's degree program in a four year institution, or
• Enrollment in a college transfer program with the intent of completing a bachelor's degree, or
• Enrollment in a graduate degree program.

The definition also contains the following note:

Note: The purpose of the activity and the ultimate credential received upon education program completion will distinguish Post-secondary Education from Job Skills Training.

Jobs Manual, Section VII.B.

The CET program does not offer a bachelor's degree or graduate degree and is, therefore, a Job Skills Training program and not a post-secondary education program. The administrative rule cited above does not apply to Job Skills Training programs. There is no equivalent administrative rule governing qualifications for Job Skills Training programs.

The JOBS Manual sets out the agency policies on qualifications for Job Skills Training. Job Skills Training is defined as "substantive, vocational training in technical job skills and equivalent knowledge and abilities in a specific occupational area." Jobs Manual Section IX.B. The JOBS Manual states that participants in Job Skills Training programs are not required to have a high school diploma or equivalent if the high school diploma is not required for the participant's employment goal. JOBS Manual, Section IX.D.1.a.

The JOBS Manual states that payment of tuition and fees for Jobs Skills Training is limited to the tuition and fee rate of the local or regional state supported institution. JOBS Manual Section IX.E.2. The JOBS Manual is a statement of agency policy and has not been adopted as a rule. Thus, it does not have the force of law. If the contract at issue provides for payment of fees and tuition in violation of the manual, the agency, at worst, violated its own internal policy. Furthermore, it is our understanding that DSS believes that the tuition and fees paid under the contract, when broken out into the various components, comply with the DSS policy.

Since it is our opinion that 10 N.C.A.C. 39D.0303 does not apply to this contract, the answers to your remaining questions about the rule are self-evident. Let us know if we can be of additional help to you.

Ann Reed
Senior Deputy Attorney General

Gayl M. Manthei
Special Deputy Attorney General