Program year 2009 state planning and waivers

Accessible letter PDF: https://www.dol.gov/sites/dolgov/files/ETA/advisories/TEGL/2008/TEGL07-08acc.pdf

CLASSIFICATION
       EMPLOYMENT AND TRAINING ADMINISTRATION
                   ADVISORY SYSTEM                      CORRESPONDENCE SYMBOL
                                                        OWI
              U.S. DEPARTMENT OF LABOR
                                                        DATE
                 Washington, D.C. 20210                 December 11, 2008


ADVISORY:           TRAINING AND EMPLOYMENT GUIDANCE LETTER NO. 7-08

TO:                 ALL STATE WORKFORCE AGENCIES
                    ALL STATE WORKFORCE ADMINISTRATORS
                    ALL STATE WORKFORCE LIAISONS

FROM:               BRENT R. ORRELL /s/
                    Deputy Assistant Secretary

SUBJECT:            Instructions for Workforce Investment Act and Wagner-Peyser
                    Act State Planning and Waiver Requests for Year Five of the
                    Strategic Five-Year State Plan (Program Year 2009)


1. Purposes.
   • To provide instructions to states for extending the life of their State
      Strategic Plans for Title I of the Workforce Investment Act of 1998 (WIA)
      and the Wagner-Peyser Act (“the State Plan”) for an additional year,
      through Program Year 2009;
   • To provide instructions to states for extending existing waivers and
      requesting new waivers; and
   • To announce renewal of Office of Management and Budget (OMB)
      approval for Stand-Alone and Unified Strategic State Planning
      Guidances.

2. References.
   • Wagner-Peyser Act, as amended (29 U.S.C. 49 et seq.)
   • Workforce Investment Act of 1998, as amended (29 U.S.C. 2801 et seq.)
   • WIA Final Rule, 20 CFR parts 660-671
   • Planning Guidance and Instructions for Submission of the Strategic State
      Plan and Plan Modifications for Title I of the Workforce Investment Act
      of 1998 (WIA) and the Wagner-Peyser Act (73 FR 72853 (Dec. 1, 2008))
   • Planning Guidance for State Unified Plans and Unified Plan
      Modifications Submitted under Section 501 of the Workforce Investment
      Act (73 FR 73730 (Dec. 3, 2008))
      Rescissions                          Expiration Date
      TEGL 13-06                           Continuing

3. Background. Current State Plans for all states, and all approved waivers
   currently in place, will expire on June 30, 2009. In the Planning Guidances
   (stand-alone and unified) issued on April 12, 2005, the Employment and
   Training Administration (ETA) only required states to submit a State Plan
   for the first two years of the five-year planning cycle because of the
   anticipated reauthorization of WIA. Given the continued uncertainty of
   WIA reauthorization, Training and Employment Guidance Letter (TEGL) 13-
   06 provided authority to states to submit a modification request to extend
   the life of the State Plan for two additional years, Program Years (PY) 2007
   and 2008. For similar reasons, we are providing states with the opportunity
   to extend the life of the existing State Plan for an additional year, PY 2009,
   the final year of the five-year planning cycle by submitting a letter
   requesting a one-year extension of the current Plan or a modification request
   to revise and extend the current Plan.

4. OMB Approval of Planning Guidances under the Paperwork Reduction
   Act. The reporting requirements for submission of State Plans and Plan
   modifications using the Stand-Alone and Unified Planning Guidances, “State
   Planning Guidance and Instructions for Title I of the Workforce Investment
   Act of 1998 (WIA) and the Wagner-Peyser Act” and “Planning Guidance for
   State Unified Plans and Unified Plan Modifications Submitted under Section
   501 of the Workforce Investment,” are approved by OMB (OMB Approval
   No. 1205-0398) pursuant to the Paperwork Reduction Act of 1995, expiration
   date November 30, 2011, and were published in the Federal Register on
   December 1 and 3, 2008, respectively. These Guidances were previously
   approved under two separate OMB control numbers, 1205-0398 and 1205-
   0404.

   Both the stand-alone and unified Guidances include revisions to the
   National Strategic Direction, which were incorporated in the revised
   Guidances published for public review and comment in the May 5, 2008,
   Federal Register. The National Strategic Direction was previously published
   in TEGL Letter 13-06. There are also minor revisions in the Planning
   Instructions of some questions in order to improve clarity, as well as
   deletions of those action items which are no longer relevant.

5. Extension or Modification of the Existing State Plan.

   A. State Plan for Year Five of the Five-Year Planning Cycle (Program Year
      2009).

       States must have approved State Plans in place to receive formula
       allotments under WIA. Therefore, states are required to submit one of


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the following in order to extend the life of the existing Stand-Alone or
Unified Plan for PY 2009:
• A letter requesting a one-year extension of their current State Plan,
     without revisions to the Plan, or
• A modification request that revises the current State Plan and
     extends the life of the Plan for one year.

If preparing a modification, states are required to follow the state
planning instructions included in Part II of the Stand-Alone Planning
Guidance or Part III of the Unified Planning Guidance.

The WIA regulations at 20 CFR 661.230, and the WIA regulations at 20
CFR 652.212 which relate to the Wagner-Peyser Act portions of the Plan,
require modifications in certain circumstances. In determining whether
it is appropriate for your state to submit a request for an extension or
submit a modified State Plan, it may be helpful to review the above-
referenced regulations. Modifications are required when there are:
• Changes in Federal or state law or policy that substantially change
      the assumptions upon which the Plan is based;
• Changes in the statewide vision, strategies, or policies;
• Changes in the methodology used to determine local allocation of
      funds;
• Reorganizations which change the working relationship with system
      employees, or changes in organizational responsibilities;
• Reorganization of the state agency designated to deliver services
      under the Wagner-Peyser Act;
• Changes in services delivered by state merit-staff employees;
• Changes to the membership structure of the State Board or
      alternative entity;
• Changes in Wagner-Peyser service delivery strategy;
• Changes in performance indicators. A state that has failed to meet
      performance goals and must adjust service strategies should submit
      a substantive modification; and
• Any similar substantial changes to the state’s workforce investment
      system.

We are aware that a few states are required to submit modifications,
instead of simply extending their Plan, to fully describe organizational
changes that have taken place since their last modification. The Regional
Offices will notify these states of the need to submit a full modification.

States will also need to consider whether the economic downturn will
require a redirection of program focus, and if so, whether a modification


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       of the State Plan is necessary at this point or at some later time. If there
       is a question about whether a particular change in circumstance requires
       a modification, the state should seek assistance from the appropriate
       Regional Office.

   B. Public Comment and Review.

       The WIA regulations at 20 CFR 661.230(d) provide that modifications to
       the State Plan are subject to the same public review and comment
       requirements that apply to the development of the original Plan. To
       facilitate public review and comment, as well as DOL review of the
       modified Plans, ETA recommends those states submitting a modification
       request integrate the proposed modifications into existing Plans
       following the format provided in either the Stand-Alone Planning
       Guidance (73 FR 72853 (Dec. 1, 2008)) or Unified Planning Guidance (73
       FR 73730 (Dec. 3, 2008)), and attach a list to identify modified portions of
       the Plan.

       States that are extending the life of their Plan by one year are encouraged
       to notify the public of their intent, and make the current Plan available to
       the public. Providing an opportunity for meaningful public input and
       comment during the development of the State Plan is a critical part of
       the strategic planning process.

6. Extension of Existing Waivers and New Waiver Requests. Many states
   have WIA Title I waivers that expire June 30, 2009. States wishing to
   continue with such waivers may request an extension through June 30, 2010,
   by including in their State Plan extension request or modification submission
   an abbreviated waiver request that references the original waiver plan
   submission and provides a brief rationale for the extension, including the
   performance outcomes achieved by implementation of the waiver. New
   waivers should be submitted as full requests with the State Plan
   modification. The Regional Offices and the National Office are available for
   consultation as states prepare their Plans and consider potential waivers.
   The attachment lists waivers ETA routinely approves.

7. Negotiation of Levels of Performance. In 2007, states negotiated
   performance levels with their Regional Office for PY 2007 and PY 2008.
   States have the option of continuing to use the goals negotiated for PY 2008
   or negotiating new goals for PY 2009. If a state wishes to negotiate new
   goals, the state must submit proposed levels of performance as part of the
   State Plan extension request or modification submission. States that have
   completed negotiations with ETA can include their agreed-upon levels of



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   performance for PY 2009 for WIA and Wagner-Peyser Act programs in the
   State Plan as part of their modification or extension request. States that
   negotiate levels of performance for PY 2009 after the submission of the
   modification or extension request can have their agreed-upon performance
   levels incorporated into the State Plan at a later date. Proposed levels of
   performance are subject to WIA’s public comment requirements for
   modifications or extensions.

   Further guidance about the negotiation of the measures will be issued
   separately. Guidance regarding the negotiation of measures of One-Stop
   Career Center services to Veterans, and measures for the Jobs for Veterans
   state grant specific outcomes will be issued separately by the Veterans
   Employment and Training Service.

8. Action Requested - Submission of Extensions or Modifications. The due
   date for submission of the modification or extension request, including
   waivers, is April 15, 2009. States have the option to submit their State Plan
   modification or extension requests in an electronic, hard copy, or CD-ROM
   format. ETA encourages electronic submissions to reduce the processing
   burden and to ensure timely receipt by ETA.

   The Federal Coordinator, without regard to which option the State uses for
   submission, will confirm receipt of the State Plan modification or extension
   within two business days of receipt and indicate the date for the start of the
   review period. When a State submits an incomplete State Plan modification,
   the period for review will not start until all required components of the
   modification have been received.

  A. Electronic Submission.

      States can submit a State Plan modification or extension request
      electronically either by posting it on an Internet Web site that is accessible
      to ETA or by transmitting it through E-mail to ETA. State Plan
      certifications with electronic signatures are acceptable. If a state chooses
      not to use an electronic signature, then the signature page must be
      submitted in hard copy with an original signature.

      Posting State Plans on an Internet Web Site. Under this option, a State
      should post its State Plan modification or extension request on an Internet
      Web site; inform the Federal Coordinator and the appropriate ETA
      Regional Administrator through E-mail of the URL and the location of the
      document on the Web site; provide contact information in the event of
      problems with accessing the Web site; and certify that no changes will be



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     made to the version posted on the Web site after it has been submitted to
     the Department, unless the Department gives prior approval for such
     changes.

     Transmitting State Plans by E-Mail. States submitting their Plan
     modification or extension request by electronic mail should send it to
     [email protected] with a copy sent to the appropriate ETA Regional
     Administrator. If a State chooses to submit its State Plan modification or
     extension request by transmitting it through E-mail, the State must submit
     it in Microsoft Word or PDF format.

  B. Hard Copy or CD-ROM Submission.

     States choosing to submit a hard copy should submit one copy of the Plan
     modification or extension request with an original signature to the
     appropriate ETA Regional Administrator and one copy to Janet Sten, the
     Federal Coordinator for Plan Review and Approval.

         Division of Workforce System Support
         Employment and Training Administration
         U.S. Department of Labor
         200 Constitution Ave., NW, Room S-4231
         Washington, DC 20210
         ATTN: Janet Sten

     States submitting a State Plan modification on CD-ROM should submit
     one copy of the Plan to the appropriate ETA Regional Administrator, and
     one copy to Janet Sten, the Federal Coordinator for Plan Review and
     Approval at the address above. If the modification on the CD-ROM does
     not include the signature of the governor on the signature page, the State
     must submit separately an electronic signature or a hand-signed signature
     page in hard copy. Plans submitted on a CD-ROM must be in Microsoft
     Word or PDF format.

9. Inquiries. Questions regarding this guidance should be directed to Janet
   Sten at [email protected], or Robin Fernkas at [email protected], or the
   appropriate ETA Regional Office. Both can be reached by calling (202) 693-
   3045. States may also submit questions by E-mail to [email protected]
   regarding the planning process.

10. Attachment. WIA Waivers and Work-flex Plan Options.




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Attachment PDF: https://www.dol.gov/sites/dolgov/files/ETA/advisories/TEGL/2008/TEGL07-08a1.pdf

Attachment

                   WIA Waivers and Work-flex Plan Options

Waivers

States may want to consider requesting one or more of the following waivers:

1. Waiver of the funds transfer limitation at WIA Section 133(b)(4) to permit
   states to approve local area requests to transfer up to 100 percent of local area
   formula allocation funds between the WIA Adult and Dislocated Worker
   programs.

2. Waiver to permit implementation of (and reporting only) common measures
   in place of current measures.

3. Waiver of the language that limits the authority to provide the activities
   identified in WIA Section 134 to the state to permit local areas to request the
   use of a portion of local area formula funds for adults and dislocated workers
   to provide statewide activities identified at WIA Section 134(a)(3)(A)(iv)
   including incumbent worker training.

   The Department has approved this waiver in amounts ranging from 10 to 50
   percent. States will be required to report performance outcomes for
   incumbent workers served under this waiver.

4. Waiver of the language limiting the authority to provide the activities at WIA
   Section 134(a)(1)(B) to statewide reserve funds to permit the use of a portion
   of the funds reserved for rapid response activities at WIA Section 133(a)(2) to
   provide incumbent worker training.

   The Department has approved this waiver in amounts ranging from 10 to 50
   percent. States will be required to report performance outcomes for
   incumbent workers served under this waiver.

5. Waiver of the reallocation provisions at WIA sections 128(c)(2) and 133(c)(2),
   and 20 CFR 667.160 to provide states additional flexibility in the targeting of
   WIA funds.

   Under the waiver, states will be permitted to implement the following
   features: 1) mid-year deobligation and reallocation of local area funds;
   2) recapture of funds from local areas that have not expended at least 80
   percent of their local funds in the first year; 3) use of recaptured funds for


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   statewide activities or reallocation to other eligible local areas; and 4) use of
   additional factors in determining local area eligibility for a reallocation of
   recaptured funds, including demonstrated need and ability to use additional
   funds.

6. Waiver of the required 50 percent employer match for customized training at
   WIA Section 101(8)(C) to permit a match based on a sliding scale.

   Under the waiver, the following sliding scale is generally permitted: 1) no
   less than 10 percent match for employers with 50 or fewer employees, and 2)
   no less than 25 percent match for employers with 51-100 employees. For
   employers with more than 100 employees, the current statutory requirements
   continue to apply.

7. Waiver of WIA Section 101(31)(B) to permit states to reimburse the employer
   on a graduated scale based on the size of the business.

   Under the waiver, the following reimbursement amounts are generally
   permitted: 1) up to 90 percent for employers with 50 or fewer employees, and
   2) up to 75 percent for employers with more than 50 but fewer than 100
   employees. For employers with 100 or more employees, the current statutory
   requirements will continue to apply.

8. Waiver of the prohibition on the use of Individual Training Accounts for
   older and out-of-school youth at 20 CFR 664.510.

Work-flex Authority

Work-flex authority allows Governors to waive any of the statutory or regulatory
requirements under Title I of WIA applicable to local areas, except those
described at 20 CFR 661.430(a)(1), any of the statutory or regulatory
requirements applicable under Sections 8 through 10 of the Wagner-Peyser Act,
except for those listed at 20 CFR 661.430(a)(2), and any of the statutory or
regulatory requirements under the Older Americans Act of 1965, except those
described at 20 CFR 661.430(a)(3). Once a state is identified as a work-flex state,
it has the authority to identify additional local level provisions to waive without
further approval from the Secretary of Labor.




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