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WIOA core program performance negotiations and sanctions

Summary ETA and the Education Department explained how states negotiate WIOA core program performance targets and when sanctions can follow performance or reporting failures. The attachments give data and model details for the negotiations. Change 1 later rescinded this base letter, and Change 2 replaced Change 1.
Document
Federal guidance
Agency
U.S. Department of Labor, Employment and Training Administration (ETA)
Document number
TEGL No. 11-19
Date issued
February 6, 2020
Status
Rescinded
Rescinded by TEGL 11-19, Change 1; ETA lists this base advisory as Rescinded. Change 2 later rescinded Change 1.
Status last verified October 24, 2026

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This document has been rescinded
Rescinded by TEGL 11-19, Change 1; ETA lists this base advisory as Rescinded. Change 2 later rescinded Change 1. It no longer reflects the agency's current position. Treat this page as historical context, not current guidance, and verify current law before relying on anything here.
About this page: The full text below is the official document from U.S. Department of Labor, Employment and Training Administration (ETA). Ezel adds the plain-English summary and tracks the document's status. The official source linked on this page is authoritative for any reliance.

Official attachments: Attachment 1, Attachment 2, Attachment 3, Attachment 4, Attachment 5.

CLASSIFICATION
     EMPLOYMENT AND TRAINING ADMINISTRATION                          WIOA
                 ADVISORY SYSTEM                                     CORRESPONDENCE SYMBOL
            U.S. DEPARTMENT OF LABOR                                 OPDR
               Washington, D.C. 20210                                DATE
                                                                     February 6, 2020

ADVISORY:           TRAINING AND EMPLOYMENT GUIDANCE LETTER NO. 11-19

TO:                 STATE WORKFORCE AGENCIES
                    STATE WORKFORCE ADMINISTRATORS
                    STATE WORKFORCE LIAISONS
                    STATE AND LOCAL WORKFORCE BOARD CHAIRS AND DIRECTORS
                    STATE LABOR COMMISSIONERS
                    STATE LMI DIRECTORS

FROM:               JOHN PALLASCH /s/
                    Assistant Secretary

SUBJECT:            Negotiations and Sanctions Guidance for the Workforce Innovation and
                    Opportunity Act (WIOA) Core Programs

1. Purpose. Through this guidance, the U.S. Departments of Labor and Education
   (Departments) delineate the process for negotiating levels of performance, as required by
   section 116(b)(3)(A)(iv) of the Workforce Innovation and Opportunity Act (WIOA). This
   guidance also provides explanation of the two instances in which a state may be sanctioned
   for performance failure or for failure to report (section 116(f) of WIOA). Section 116 of
   WIOA, its implementing regulations, and this guidance govern how the Departments will
   determine when it is necessary to sanction a state, which is statutorily required by WIOA.1

2. Action Requested. Distribute this information to the appropriate state and local staff.
   Please make this information available to the appropriate program, reporting, performance
   accountability, and technical staff.

1
 This guidance is a statement of the Departments’ policy regarding the Workforce Innovation and Opportunity Act.
Other than statutory and regulatory requirements included in this document, the contents of this guidance do not
have the force and effect of law. This document is intended only to provide clarity regarding existing requirements
under the applicable law or agency policies.

    RESCISSIONS                                                      EXPIRATION DATE
    None                                                             Continuing

3. Summary and Background.

      Summary – This letter provides guidance on the requirements for reaching agreement on the
      negotiated levels of performance and the application of sanctions for the states2 outlined in
      section 116 of WIOA and its implementing joint regulations in 20 CFR part 677 and
      34 CFR parts 361 and 463. This guidance supplements the guidance provided by the
      Departments in “Performance Accountability Guidance for WIOA Title I, Title II, Title III,
      and Title IV Core Programs,” issued December 16, 2016 and updated August 17, 2017, and
      “WIOA Annual Performance Report Submission,” issued September 11, 2017.3

      Background – WIOA establishes performance accountability indicators and performance
      reporting requirements to assess the effectiveness of states and local areas in achieving
      positive outcomes for individuals served by the workforce development system’s six core
      programs.4

      Under section 116(b)(2)(A) of WIOA, there are six primary indicators of performance for
      which each of the state’s core programs must negotiate targets with its respective Federal
      agency:

          The percentage of program participants who are in unsubsidized employment during the
           second quarter after exit from the program (for the title I Youth program, the indicator is
           the percentage of program participants in education or training activities, or unsubsidized
           employment, during the second quarter after exit);

          The percentage of program participants who are in unsubsidized employment during the
           fourth quarter after exit from the program (for the title I Youth program, the indicator is
           the percentage of program participants in education or training activities, or unsubsidized
           employment, during the fourth quarter after exit);

          The median earnings of program participants who are in unsubsidized employment
           during the second quarter after exit from the program;

2
 As stated in 20 CFR § 677.150(d), 34 CFR § 361.150(d), and 34 CFR § 463.150(d), the negotiations and sanctions
process only applies to states as defined in sec. 3(56) of WIOA – each of the several states of the United States, the
District of Columbia, and the Commonwealth of Puerto Rico. It does not apply to the outlying areas as defined in
sec. 3(45)—American Samoa, Guam, the Commonwealth of the Northern Mariana Islands, the U.S. Virgin Islands,
and the Republic of Palau.
3
    See Attachment 5 – References.
4
  The six core programs are the Adult, Dislocated Worker, and Youth programs, authorized under WIOA title I and
administered by DOL; the Adult Education and Family Literacy Act (AEFLA) program, authorized under WIOA
title II and administered by ED; the Employment Service program authorized under the Wagner-Peyser Act, as
amended by WIOA title III and administered by DOL; and the Vocational Rehabilitation (VR) program authorized
under title I of the Rehabilitation Act of 1973, as amended by WIOA title IV and administered by ED.

      The percentage of program participants who attain a recognized postsecondary credential,
       or a secondary school diploma or its recognized equivalent, during participation in or
       within one year after exit from the program, provided that a program participant who
       obtains a secondary school diploma or its recognized equivalent is included in the
       percentage of program participants who have attained a secondary school diploma or its
       recognized equivalent only if the participant also is employed or is enrolled in an
       education or training program leading to a recognized postsecondary credential within
       one year after exit from the program (this indicator does not apply to the Employment
       Service program authorized under the Wagner-Peyser Act, as amended by WIOA title
       III);

      The percentage of program participants who, during a program year, are in an education
       or training program that leads to a recognized postsecondary credential or employment
       and who are achieving measurable skill gains toward such a credential or employment
       (this indicator does not apply to the Employment Service program authorized under the
       Wagner-Peyser Act, as amended by WIOA title III); and

      The effectiveness in serving employers. The Departments determined that the
       Effectiveness in Serving Employers indicator will be measured as a shared outcome
       across all six core programs within each state to ensure a holistic approach to serving
       employers. The Departments will continue piloting approaches for measuring this
       indicator for the first two years of PY 2020-2023 Unified or Combined State Plans.
       Therefore, states are not required to submit an expected level of performance for the
       Effectiveness in Serving Employers indicator for PY 2020 and PY 2021. However, core
       programs are expected to collect data and select one agency to report joint results for this
       indicator for PY 2020 and PY 2021 as they did for PY 2016-2019 plans.

   WIOA requires the Governor of each state to submit a Unified or Combined State Plan that
   includes a four-year strategy for the state’s workforce development system and to submit a
   modification to that plan after two years (sections 102(c) and 103(b)(1) of WIOA). The
   expected levels of performance for each primary indicator of performance for each core
   program must be included in the initial submission of a Unified or Combined State Plan and
   in the required two-year modification of the plan (section 116(b)(3)(A)(iii) of WIOA)). The
   approved Unified or Combined State Plan and the required two-year modification must
   reflect two years of negotiated levels of performance (section 116(b)(3)(A)(iv) of WIOA).

   Additional information on the process for setting these levels of performance is provided
   below.

4. Negotiations and Sanctions Guidance.

       Definitions of Terms
       Below, the Departments provide clarification about the various terms relevant to the
       process of establishing levels of performance under WIOA section 116(b):

   Expected levels of performance are the levels of performance proposed by the state in
    the initial submission of the Unified or Combined State Plan and in the required two-year
    modification of the Unified or Combined State Plan prior to negotiations (WIOA section
    116(b)(3)(A)(iii)) for each primary indicator of performance for each core program;

   Negotiated levels of performance are the levels of performance mutually agreed to by
    the state and the Department for each respective program. The negotiations process must
    be based on four factors described in section 4 of this guidance. These negotiated levels
    of performance must be incorporated into the approved Unified or Combined State Plan
    and the approved two-year modification of that Plan (WIOA section 116(b)(3)(A)(iv)) for
    each primary indicator of performance for each core program;

   Adjusted levels of performance are levels of performance determined by adjusting the
    negotiated levels of performance at the end of the program year to reflect actual
    characteristics of participants served and the actual economic conditions experienced
    using the statistical adjustment model (see below) (WIOA section 116(b)(3)(A)(vii));

   Actual level of performance is the outcome reported by a state on the Statewide
    Performance Report (ETA-9169 OMB No. 1205-0526) for each primary indicator of
    performance for each core program (section 116(d)(2) of WIOA). Actual levels of
    performance will be compared to the adjusted levels of performance at the close of the
    program year to determine the state’s performance success or failure;

   Adjustment factor is a positive or negative difference that will be added to the
    negotiated level of performance to determine the adjusted level of performance. The
    adjustment factor is the difference between the estimated levels of performance predicted
    by the statistical adjustment model prior to the start of the program year and the levels of
    performance re-estimated by the statistical adjustment model after the close of the
    program year. This calculation will yield a positive or negative difference, which will be
    used as the adjustment factor for the program year;

   Individual indicator score is the proportion the actual level of performance represents
    of the adjusted level of performance for a single performance indicator for a single
    program. It is calculated by dividing the actual level of performance achieved by the
    adjusted level of performance;

   Overall state program score is the average of the individual indicator scores for a
    single WIOA core program across performance indicators;

   Overall state indicator score is the average of the individual indicator scores for a
    single performance indicator across WIOA core programs; and

   Statistical adjustment model is an objective regression model used to estimate levels of
    performance and adjusted levels of performance. Before the program year, the statistical
    adjustment model determines estimates that are used as a factor in the negotiations
    process. After the program year, the estimates derived from the statistical adjustment
    model are applied to the actual economic conditions and characteristics of participants
    served to determine the adjustment factor (WIOA section 116(b)(3)(A)(viii)). Economic
    conditions include differences in unemployment rates and job losses or gains in particular
    industries. Characteristics of participants include, but are not limited to, indicators of
    poor work history, lack of work experience, lack of educational or occupational skills
    attainment, dislocation from high-wage and high-benefit employment, low levels of
    literacy or English proficiency, disability status, homelessness, ex-offender status, and
    welfare dependency. The statistical adjustment model also takes into account other
    factors that, through empirical support, are determined to have an effect on predicting
    state outcomes.

    The Negotiations Process Overview
    WIOA section 116(b)(3)(A)(iv) requires that states reach agreement with the
    Departments on levels of performance for each primary indicator of performance for each
    of the core programs. The Departments call these agreed-upon levels “negotiated levels
    of performance,” and they must cover the first two program years of the Unified or
    Combined State Plan. States also are required to reach agreement with the Departments
    on negotiated levels of performance for each of the primary indicators of performance for
    each of the core programs for the third and fourth years of the Unified or Combined State
    Plan. These negotiated levels of performance must be incorporated into the Unified or
    Combined State Plan during the required two-year modification of a plan (WIOA section
    116(b)(3)(A)(iv)). Attachment 3—“WIOA Negotiations/Performance Process”—
    illustrates the process for negotiations and determining performance success or failure,
    which is detailed later in this guidance. The primary indicator for the effectiveness in
    serving employers has not yet been defined. For this reason, the negotiations process
    described below does not include this indicator. States should continue to report
    performance on the pilot measures described in the joint performance accountability
    guidance (“Performance Accountability Guidance for Workforce Innovation and
    Opportunity Act (WIOA) Title I, Title II, Title III, and Title IV Core Programs,” DOL
    TEGL 10-16, change 1, OCTAE PM 17-2, and RSA TAC 17-01 dated August 2017)
    until this indicator is defined.

    The negotiations process will proceed as follows:

       As stated above, each state must submit expected levels of performance in its Unified
        or Combined State Plan and in the two-year modification of that plan. Expected
        levels of performance for the first two years of a state plan must be submitted in the
        initial submission of the Unified or Combined State Plan and in the initial
        submission of the two-year modification of that Plan, for years three and four, as

    described in 20 CFR § 677.170(a) and 34 CFR § 361.170(a) and § 463.170(a).
    Expected levels of performance must be stated to the nearest tenth of a percent
    (XX.X %) or to the nearest whole dollar for median earnings. States are reminded
    that the expected levels of performance proposed by states in their plan must be
    published for public comment prior to plan submission in accordance with state law,
    regulation, and policy;

   After the Unified or Combined State Plan submission, the state must negotiate and
    reach agreement with the respective Federal agency on the negotiated levels of
    performance for the indicators for each of the first two years of the Unified or
    Combined State Plan (or for the third and fourth years of the Unified or Combined
    State Plan during the required two-year modification process) for each of the core
    programs under WIOA section 116(b)(3)(A)(iv). The factors that will be taken into
    account during the negotiations process are described in detail below under
    Negotiation Factors;

   The Departments will use the statistical adjustment model as a tool in the
    negotiations process to estimate the state’s levels of performance prior to the
    program year to help reach agreement on the negotiated levels of performance. The
    negotiation factors outlined in WIOA section 116(b)(3)(A)(v) and further described
    below under Negotiation Factors will be taken into account during this process; and

   Once negotiated levels of performance are agreed upon, the state must incorporate
    the negotiated levels of performance into the Unified or Combined State Plan and
    the two-year modification of that plan prior to the plan’s approval (section
    116(b)(3)(A)(iv) of WIOA).

Use of the Statistical Adjustment Model in the Negotiations Process
As required by section 116(b)(3)(A)(viii) of WIOA, the Departments will use the
statistical adjustment model to ensure that the impact of participant characteristics and
economic conditions in the state are accounted for in determining the negotiated levels of
performance.

The statistical adjustment model will provide two major functions in performance
negotiations and assessment of state performance. First, it is one of the factors used
when coming to agreement on the negotiated levels of performance. It is used to account
for the economic conditions and the characteristics of participants to be served in the state
and/or local areas (section 116(b)(3)(A)(v)(II) of WIOA). Second, it will be used at the
close of a program year to adjust the negotiated levels of performance for the actual
economic conditions experienced and actual characteristics of participants served (section
116(b)(3)(A)(vii) of WIOA); these are the adjusted levels of performance.

The Departments recognize that the use of the statistical adjustment model is a new
requirement for the core programs and believe that it will be critically important to the
WIOA performance negotiations process. As more data become available, the
Departments will periodically review the model and refine it as necessary. State
performance will be assessed using the iteration of the model used to negotiate the levels
of performance for that program year.

Negotiating Levels of Performance
Unified or Combined State Plan submissions and the two-year modifications to those
plans must contain expected levels of performance for the primary indicators of
performance (section 116(b)(3)(A)(iii) of WIOA). Submitting this information is the first
step in the negotiations process. Once the expected levels of performance have been
submitted, each core program must begin negotiations with its respective Federal agency
(section 116(b)(3)(A)(iv) of WIOA). Title I WIOA and title III Employment Service
programs will conduct these negotiations with their DOL-Employment and Training
Administration (ETA) Regional Offices. The title II AEFLA program will conduct
negotiations with the Office of Career, Technical, and Adult Education’s (OCTAE)
Division of Adult Education and Literacy, and the title IV VR program will conduct
negotiations with the Rehabilitation Services Administration’s (RSA) State Monitoring
and Program Improvement Division. The agencies will review how this process applies
to the Effectiveness in Serving Employers indicator, once the pilot phase is completed.
Additional guidance will be provided on the process for negotiating this joint indicator.

States have access to their own historical performance information and various other
tools and resources, such as data from the Bureau of Labor Statistics or U.S. Census
Bureau. These tools may be used to establish the states’ expected levels of performance.
When using other resources to analyze the relationship between labor market or
economic conditions and actual performance, states should consider the reference period
of the resource and the timeframes associated with each of the primary indicators of
performance and apply them accordingly.

Negotiation Factors
In reaching agreement on the negotiated levels of performance, states and the
Departments must apply the following factors pursuant to section 116(b)(3)(A)(v) of
WIOA. Note that WIOA does not specify more or less weight on any specific
negotiation factor.

1. Take into account how the levels involved compare with the negotiated levels of
   performance established for other states (section 116(b)(3)(A)(v)(I) of WIOA).

   The Departments will provide the most recent performance data for all states,
   including previous actual, negotiated, and adjusted levels of performance, and will
   use this information throughout the negotiations process.

2. Ensure that the levels involved are adjusted using an objective statistical adjustment
   model provided by the Departments (section 116(b)(3)(A)(v)(II) of WIOA).

  Before the negotiations process begins, the Departments will provide the estimated
  outcomes produced by the statistical adjustment model, including the coefficients and
  state specific values for each variable. This information will include levels of
  performance, as estimated by the Departments, to be used to inform the negotiations
  process. State agencies and their respective Federal agencies must negotiate using the
  levels of performance estimated by the model for each primary indicator of
  performance. These estimated levels of performance may not be altered for the
  purposes of negotiations, including any changes in participant characteristics or
  economic conditions anticipated by the state that would result in changes to the levels
  of performance predicted by the statistical model. Any changes in participant
  characteristics or economic conditions will be reflected in the model by using the
  actual participant characteristics and economic conditions after the close of the
  program year, and they will not be factored into the negotiations process.

3. Take into account the extent to which the levels involved promote continuous
   improvement in performance accountability measures by the state and ensure optimal
   return on the investment of Federal funds (section 116(b)(3)(A)(v)(III) of WIOA).

  The Departments consider continuous improvement to be a critical factor in the
  negotiations process. The Departments will consider continuous improvement factors
  that ensure optimal return on investment of Federal funds.

  The Departments acknowledge that there are many ways to define continuous
  improvement as related to state or national program circumstances. For example,
  continuous improvement may reflect:

     an increase from the levels of performance previously attained;
     increases in percentile rankings of levels of performance either nationally or
      among similar states;
     a change in service strategy and delivery, including more progressive or
      innovative approaches;
     a change in the intensity or comprehensiveness with which customers are served;
      or
     a maintenance of previous performance for the top performing states.

  The Departments acknowledge that changes to service strategy or customers served
  do not always lead to increases in performance levels.

                States and local areas must adhere to the priority of service requirements of WIOA
                title I programs as established in WIOA5. Additionally, the Departments encourage
                all other WIOA programs to serve more individuals with barriers to employment who
                may need more intensive services to achieve a positive outcome. The effect of
                serving more of these customers will be accounted for in the adjusted levels of
                performance calculated after the program year.

            4. Take into account the extent to which the levels involved will assist the state in
               meeting the performance goals established by the Secretaries of Education and Labor
               in accordance with the Government Performance and Results Act of 1993 (GPRA)
               (section 116(b)(3)(A)(v)(IV) of WIOA).

                Section 116(b)(3)(A)( vi) of WIOA requires the Departments to establish long term
                goals for the adjusted levels of performance for each of their core programs through
                GPRA expectations. GPRA is a mechanism through which Congress and the Office
                of Management and Budget evaluate the success of Federal programs, including those
                operated by states and local areas. During negotiations, the Departments will take
                into consideration levels of performance that will assist the Federal agencies in
                meeting the established GPRA goals.

           Determination of Sanctions
           There are two types of failure that can lead to sanctions: failure to report and failure to
           meet adjusted levels of performance (section 116(f) of WIOA). A discussion of both
           circumstances is below.

           a. Sanctions for Failure to Report
           Sanctions will be applied when a state fails to submit the performance reports to the
           appropriate Federal agency, as required under WIOA section 116(d) (section 116(f)(1)(B)
           of WIOA). Consistent with 20 CFR § 677.185(a) and 34 CFR §§ 361.185(a) and
           463.185(a), the Departments consider a state as failing to submit the performance reports
           if the state either: (1) does not submit performance reports by 11:59 p.m. local time6 on
           October 1 or (2) submits performance reports by the date for timely submission, but the
           report is incomplete. Annual performance report requirements are complete when the
           state:

               attests all reports are complete and accurate to the best of their knowledge;
               submits a WIOA Statewide Performance Report (ETA-9169) for each of the six
                WIOA core programs;

5
 WIOA section 134(c)(3)(E) and TEGL 19-16 provide additional information regarding priority of service
populations and service requirements.
6
    Local time references the state capital’s time zone.

               reports all elements of the WIOA Statewide Performance Reports as data are
                available according to the reporting periods of each indicator;
               makes available a mechanism of electronic access to local area performance reports
                for WIOA title I programs;
               makes available a mechanism of electronic access to Eligible Training Provider
                (ETP) performance reports for WIOA title I programs; and
               submits at least one WIOA Statewide Performance Report that includes Effectiveness
                in Serving Employers performance results reflecting all six core programs.

            If the performance report submitted by the state does not meet all of the above
            requirements by the reporting deadline, it is incomplete.

            The Departments implemented sanctions provisions for failure to report beginning with
            the PY 2017 WIOA Statewide Performance Reports submission, which was due on
            October 1, 2018.7

Consistent with section 116(f)(1)(B) of WIOA, sanctions will not be applied in cases where
failure to report is due to exceptional circumstances outside the state’s control as determined by
the Departments. The Departments defined exceptional circumstances in 20 CFR § 677.185(b)
and 34 CFR §§ 361.185(b) and 463.185(b). Exceptional circumstances may include, but are not
limited to:

               natural disasters;
               unexpected personnel transitions; and
               unexpected technology related issues.

           In instances of exceptional circumstances causing a state’s failure to report that occur
           more than 30 calendar days before the established deadline, the state must notify the
           Secretary of Labor or Education, as appropriate, by requesting a reporting extension no
           later than 30 calendar days prior to the established deadline for submission (20 CFR §
           677.185(c)(1) and 34 CFR §§ 361.185(c)(1) and 463.185(c)(1)).

           Extension Requests
           In the event of exceptional circumstances as just described, the state must notify the
           Secretary of Labor or Education, as appropriate, in writing of a potential impact on the
           State’s ability to submit its State annual performance report in order not to be considered
           failing to report (20 CFR § 677.185(c) and 34 CFR §§ 361.185(c) and 463.185(c)). In so
           doing, the State’s request for an extension should include a detailed account identifying
           the unexpected events precluding timely reporting sufficient for the Departments to make

7
    ETP performance reports are required to be submitted beginning with the PY 2018 Annual Report due on October
    1, 2019.

a determination. Information that should be included in an extension request is as
follows:

    Sufficient detail of the unexpected circumstances that will lead to untimely or
     incomplete reporting to warrant an extension;
    A proposed extension, fitting of the circumstances causing the delay, which should
     not exceed 30 calendar days after the established annual reporting deadline; and
    Any other information that the state deems relevant to help explain the need for an
     extension.

The state must submit the extension request as soon as possible, but not later than 30
calendar days prior to the established annual reporting deadline (20 CFR § 677.185(c)(1)
and 34 CFR §§ 361.185(c)(1) and 463.185(c)(1)). The annual reporting deadline is
October 1 each year; therefore, states must submit reporting extension requests not later
than September 1 (or the next business day if September 1 falls on a holiday or weekend).

In cases where exceptional circumstances occur within 30 calendar days of the
established annual reporting deadline, the state must submit an extension request to the
Secretary of Labor or Education, as applicable, as soon as possible but not later than the
established annual reporting deadline (20 CFR § 677.185(c)(2) and 34 CFR §§
361.185(c)(2) and 463.185(c)(2)). Under these circumstances in addition to the above,
the request also should include sufficient explanation as to why notification of the delay
could not be provided 30 calendar days prior to the established annual reporting deadline.

All extension requests will be reviewed by the Departments for completeness and a
thorough explanation of exceptional circumstances. The Departments may grant
extension requests as submitted, grant extension requests with revisions, or reject the
extension requests. Proposed reporting extensions should not exceed 30 calendar days
after the established annual reporting deadline and should be appropriate to and
commensurate with the cause of the requested extension.

Additionally, all extension requests should include the names and contact information of
each responsible state designee or designated point of contact who will ensure that the
extension deadline will be met.

In the event of failure to report timely or completely, pursuant to section 116(f)(1)(B) of
WIOA, the Governor’s discretionary funds provided under section 128(a) of WIOA will
be reduced by five percent of the maximum available allotment in the immediately
succeeding program year. The WIOA Joint Final Rule at 20 CFR § 677.195 and 34 CFR
§§ 361.195 and 463.195 clarified that the sanction is equal to five percent of the
maximum allotment percentage that could be reserved by the Governor in the succeeding
program year rather than a five percentage point reduction from the percentage that a

Governor elected to reserve. This sanction will be enforced for each year in which a state
fails to report timely or completely.

b. Sanctions for Failure to Meet Adjusted Levels of Performance
In accordance with 20 CFR § 677.190(d) and 34 CFR §§ 361.190(d) and 463.190(d), a
performance failure occurs if:

   any single Individual Indicator Score for any single core program falls below 50
    percent of the adjusted level of performance;
   the Overall State Program Score falls below 90 percent for that single core program;
    or
   the Overall State Indicator Score falls below 90 percent for that single measure.

Any State that fails to meet adjusted levels of performance for the primary indicators of
performance for any year will receive technical assistance, including assistance in the
development of a performance improvement plan provided by the Secretary of Labor or
Secretary of Education (20 CFR § 677.190(b) and 34 CFR §§ 361.190(b) and
463.190(b)). However, if the state has the same performance failure occur in two
consecutive program years, the Departments will apply sanctions. Further explanation of
how technical assistance and sanctions will be applied is provided later in this section.

Determining Performance Success or Failure
The Departments will determine state performance success or failure at the end of each
program year. In order to make a determination of success or failure, the negotiated
levels of performance for that year will be adjusted using the statistical adjustment model,
which will factor in data on the actual economic conditions of the state and the actual
characteristics of the populations served by the program during that year. This
adjustment will be calculated as described above in the definitions of adjustment factor
and adjusted levels of performance. A detailed explanation of this calculation is found in
Attachment 2 “Calculation—Adjusted Level of Performance.” This will determine the
adjusted levels of performance for the program year against which the state’s actual
levels of performance will be evaluated through the calculation of the performance score.
Attachment 4, “Determining Performance Success or Failure,” provides an overview of
the entire process.

The individual indicator score is calculated by dividing the actual level of performance
achieved by the adjusted level of performance. The adjusted level of performance is
calculated by adding the adjustment factor to the negotiated level of performance. The
individual indicator score will not be rounded; it will be truncated to the first decimal
place. A detailed example can be found in Attachment 1.

Table 1, below, illustrates the determination of performance success or failure across all
indicators of performance for a single core program. The performance scores are

        calculated for each primary indicator of performance and the average is computed. In
        this example, the Individual Indicator Score for Employment Rate—4th Quarter after Exit
        of 46.8 percent is a performance failure because it is below the 50.0 percent threshold.
        The Overall State Program Score of 81.5 percent is obtained by averaging the scores for
        each indicator in the program. In Table 1 below, this is a performance failure because the
        core program did not achieve 90 percent. Percentages will not be rounded in this
        calculation; they will be truncated to the tenth of a percent. Note that the Effectiveness in
        Serving Employers indicator is not included in this calculation because this indicator is
        not yet defined by the Departments.

Table 1: Calculation of Overall State Program Score
                           Actual Level of
 Primary Indicator                                  Adjusted Level       Individual Indicator Score
                            Performance
  of Performance                                    of Performance              Calculation
                       (Numerator/Denominator)
Employment
Rate—2nd Quarter                                        75.1%
after Exit
Employment
Rate—4th Quarter                                        70.0%
after Exit
Median Earnings—
2nd Quarter after               $3,434                  $3,890
Exit
Credential
                                                        55.2%
Attainment

Measurable Skill
                                                        85.6%
Gains

Effectiveness in
                                 N/A                     N/A                        N/A
Serving Employers

   Overall State
  Program Score*
    (Average of
                                   -                       -                       81.5%
Individual Indicator
Scores for this Core
     Program)
*For a detailed explanation of the calculation behind the Overall State Program Score, please refer to
 Attachment 1.

        Table 2 illustrates the calculation for a single primary indicator of performance across all
        core programs. The performance scores are calculated for the Employment—2nd Quarter
        after Exit indicator for each core program, and the average is computed. In this case, the
        Overall State Indicator Score, which is the average of all Individual Indicator Scores, is
        92.6 percent, so the core program achieved performance success. Again, percentages will
        not be rounded in this calculation; they will be truncated to the tenth of a percent.

Table 2: Calculation of Overall State Indicator Score
                                                                                                Overall
                                                                                                 State
                                                                                               Indicator
                                                                                                Score*
                                                                                               (Average
                   Title I-     Title I-    Title I-                                              of
   Program                                                  Title II   Title III   Title IV
                   Adult        Youth        DW                                               Individual
                                                                                               Indicator
                                                                                                Scores
                                                                                                Across
                                                                                                 Core
                                                                                              Programs)
Actual Level of
Performance
                                                                                                  -
(Numerator/
Denominator)
Adjusted Level
                    75.1%       70.2%        75.5%          67.5%      70.0%       69.0%          -
of Performance

Individual
Indicator Score                                                                                92.6%
Calculation        75.1%        70.2%       75.5%           67.5%      70.0%
                      =            =           =               =          =           =

*For a detailed explanation of the calculation behind the Overall State Indicator Score, please refer to
Attachment 1.

    Phasing in Sanctions for Performance Failure
    The Departments used their transition authority under section 503(a) of WIOA to implement
    a phased-in approach to determine performance success or failure for each indicator or
    program, due to data availability, as described in 20 CFR § 677.190(c) and
    34 CFR §§ 361.190(c) and 463.190(c).

    If a performance failure occurs at the end of the program year, the respective Federal agency
    and the state agency will work to develop a performance improvement plan, and the Federal
    agency will provide technical assistance in accordance with section 116(f)(1)(A) of WIOA.

    Table 3 below summarizes the first years in which each performance indicator will be
    evaluated for performance success or failure (with the exception of the Effectiveness in
    Serving Employers performance indicator, which is currently being piloted and will be
    established in subsequent guidance).
Table 3: Implementation of Performance Determination by Title and Indicator
                                                            First Program Year for which
    Title              Indicators of Performance            Performance Success or
                                                            Failure Can Be Determined
                   Employment 2nd Quarter after Exit*
    Title I        Median Earnings 2nd Quarter after Exit                PY 2020
                   Measurable Skill Gains
                   Employment 4th Quarter after Exit*
    Title I                                                               PY 2022
                   Credential Attainment
                   Employment 2nd Quarter after Exit
    Title II       Median Earnings 2nd Quarter after Exit                PY 2020
                   Measurable Skill Gains
                   Employment 4th Quarter after Exit
    Title II                                                              PY 2022
                   Credential Attainment
                   Employment 2nd Quarter after Exit
    Title III                                                             PY 2020
                   Median Earnings 2nd Quarter after Exit
    Title III      Employment 4th Quarter after Exit                     PY 2022
    Title IV       Measurable Skill Gains                                PY 2020
                                   nd
                    Employment 2 Quarter after Exit
                   Median Earnings 2nd Quarter after Exit
    Title IV                                                              PY 2022
                   Employment 4th Quarter after Exit
                   Credential Attainment
*Note that for WIOA title I Youth, these indicators include placement in education or training.

    If the state has the same performance failure occur in two consecutive program years, the
    Departments will apply sanctions, pursuant to section 116(f)(1)(B) of WIOA. Specifically,
    the Departments will reduce the Governor’s discretionary funds provided under section
    128(a) of WIOA by five percent of the maximum available amount in the program year
    immediately succeeding the second consecutive performance failure. The WIOA Joint Final
    Rule at 20 CFR § 677.195 and 34 CFR §§ 361.195 and 463.195 clarified that the sanction is
    equal to five percent of the maximum allotment percentage that could be reserved by the
    Governor in the succeeding program year rather than a five percentage point reduction from
    the percentage that a Governor elected to reserve. This sanction will be enforced each
    successive year in which the state continues to have the same performance failure.

Local Performance and Negotiations under WIOA Title I
a. Negotiations with Local Areas
In addition to the state negotiated levels of performance, states must work with local
workforce development areas to establish local performance goals for WIOA title I programs
(section 116(c) of WIOA).

The local board, the Chief Elected Official, and the Governor must negotiate and reach
agreement on local levels of performance based on the state negotiated levels of
performance. In negotiating the local levels of performance, the local board, the Chief
Elected Official, and the Governor also must use the above-listed four factors of negotiation
used at the state level. In addition, a statistical adjustment model that aligns with the
framework of the state-level model must be used at the end of the program year to adjust
negotiated local levels of performance in order to reflect the actual economic conditions
experienced in the local area and the characteristics of the actual individuals served
according to the state’s established policies. States should make these negotiated and
adjusted levels as well as the established policies for local performance assessment available
to the local boards and the state’s DOL-ETA Regional Office prior to the start of the program
year in which the policies will be applied.

The Departments have developed the framework for an objective statistical adjustment
model that satisfies the WIOA requirements at the state level. States must use this
framework and develop a model that satisfies their needs at the local level, both in the
performance negotiations and year-end adjustment of local levels of performance.

The local board, the Chief Elected Official, and the Governor must negotiate and reach
agreement on local levels of performance for two program years at a time, based on the
state’s negotiated levels of performance, no later than September 30 in each year in which
state negotiations occur. The state must notify its DOL-ETA Regional Office that
negotiations are complete.

b. Local Performance Success and Failure
States must use local performance goals for WIOA title I programs for two required
purposes: (1) to determine if a local area “performed successfully” for subsequent local area
designation, and (2) to determine when a state must take corrective action when a local area
fails to meet the adjusted levels of performance.

For the purpose of determining subsequent local area designation, the term “performed
successfully” means that the local area met or exceeded the levels of performance the
Governor negotiated with the local board and chief elected official for WIOA primary
indicators of performance and that the local area has not failed any individual measure for the

   last two consecutive program years in accordance with a state-established definition,
   provided in the state plan, of met or exceeded performance. For subsequent designation
   determinations made at the conclusion of PY 2018, or at any point thereafter, states must
   base their findings of whether a local area performed successfully for the two most recently
   completed program years on all six of the WIOA primary indicators of performance where at
   least two years of data are available.

   A state must establish the threshold for failure to meet adjusted levels of performance for a
   local area before coming to agreement on the negotiated levels of performance for the local
   area. Following the conclusion of the program year, a state must establish the adjusted level
   of performance for a local area, using the statistical adjustment model described. At least
   two years of complete data on any indicator for any local core program are required in order
   to establish adjusted levels of performance for a local area. States must provide technical
   assistance if a local area fails to meet the adjusted levels of performance agreed to for the
   primary indicators of performance in WIOA title I programs in any program year. Upon the
   state’s request to the Secretary of Labor, DOL may provide this technical assistance.

   The technical assistance may include:
     assistance in the development of a performance improvement plan;
     the development of a modified local or regional plan; or
     other actions designed to assist the local area in improving performance.

   If a local area fails to meet the adjusted levels of performance agreed to for the same primary
   indicators of performance for the same core program authorized under WIOA title I for a
   third consecutive program year, the Governor must take corrective actions. If the governor
   takes corrective action against a local area for failing to meet the negotiated goals, the state
   workforce agency should advise its Federal Project Officer of this action. The corrective
   actions must include the development of a reorganization plan under which the Governor:
     requires the appointment and certification of a new local board, consistent with the
         criteria 20 CFR § 679.350;
     prohibits the use of eligible providers and one-stop partners that have been identified as
         achieving poor levels of performance; or
     takes such other significant actions as the Governor determines are appropriate.

5. Inquiries. Questions regarding this guidance should be directed to the appropriate ETA,
   OCTAE, or RSA office.

6. References. Refer to Attachment 5 of this guidance.

7. Attachments.
   Attachment I: Calculation—Overall State Indicator and Program Scores
   Attachment II: Calculation—Adjusted Level of Performance
   Attachment III: WIOA Negotiations / Performance Process Flow Chart
   Attachment IV: Determining Performance Success or Failure
   Attachment V: References—Joint Negotiations and Sanctions Guidance

                                                                                     Attachment I

                  Calculation—Overall State Indicator and Program Scores

States and Federal agencies negotiate to one decimal place. Actual levels of performance are
calculated by dividing the number of successes within an indicator (numerator) by the total
number of participants matching the qualifications for the given indicator (denominator). Actual
levels of performance are reported by the state for all primary indicators of performance. In the
WIOA statewide performance report (ETA-9169), actual levels of performance are represented
by rounding to the nearest tenth of a percent, but for the purpose of performing these
calculations, actual levels of performance and adjusted levels of performance are neither rounded
nor truncated.

In the table below, refer to the column related to the title I Adult program for an example of
Employment Rate—2nd Quarter after Exit.
   Numerator = 16,244 (Total number of participants in the denominator that were also
    employed second quarter after exit.)
   Denominator = 24,000 (Total number of participants that exited during the reporting period.)
   Numerator divided by Denominator =            = 0.676833
   Rate reported in Annual Report = 67.7%
   Adjusted level of performance = 75.2%

           Employment Rate—2nd Quarter after Exit Results by Core Program
                                    Title I                    Title III  Title IV
                          Title I            Title I Title II
         Program                  Dislocated                  Wagner-    Vocational
                          Adult              Youth AEFLA
                                   Worker                      Peyser Rehabilitation
Numerator                 16,244   13,000    20,000 9,000       6,000     31,555
Denominator               24,000   18,000    30,000 15,000     12,000     42,000
Annual Report Value       67.7%    72.2%     66.7% 60.0%       50.0%      75.1%
Adjusted Level of
                          75.2%    72.5%     76.3% 79.7%       68.7%      65.4%
Performance

What figures are used to determine how close actual performance was to the adjusted level of
performance?

Each Indicator Score is calculated in a similar way. For those indicators reported as a
percentage, use both numerator and denominator in the next step.

The Indicator Score is calculated by dividing the actual outcome by the adjusted level of
performance.

For those indicators not reported as a percentage, such as Median Earnings in the Second Quarter
after Exit, use the value in the Annual Report and divide by the adjusted level of performance.

                                                                                         Attachment I

How are the Overall State Indicator Scores calculated?

After the Indicator Score is calculated for each single primary indicator of performance, it is
populated into the below matrix. Each row of Indicator Scores is averaged and truncated to one
decimal place to produce the Overall State Indicator Score. In the example below, the average of
the Employment Rate—2nd Quarter after Exit Indicator Scores for the six programs is 0.89985
and is truncated to one decimal place for an Overall State Indicator Score of 89.9%.

   Primary                                                                                    Overall
                             Title I                            Title III     Title IV
  Indicator/     Title I                Title I     Title II                                   State
                           Dislocated                           Wagner-      Vocational
     Core        Adult                  Youth       AEFLA                                    Indicator
                            Worker                              Peyser      Rehabilitation
   Program                                                                                     Score
Employment
2nd Quarter      90.0%       99.6%      87.4%           75.3%    72.8%         114.9%          89.9%
after Exit
Employment
4th Quarter       87.4%
after Exit
Median
Earnings 2nd
                 111.8%
Quarter after
Exit
Credential
Attainment       130.1%                                                          N/A
Rate
Measurable
                  84.1%                                                          N/A
Skill Gains
Effectiveness
in Serving        N/A
Employers
   Overall
     State
                 100.6%                                                                          -
   Program
    Score

                                                                                    Attachment I

How are the Overall State Program Scores calculated?

After the Indicator Score is calculated for each primary indicator of performance, it is populated
into the above matrix. Each column of Indicator Scores is averaged and truncated to one decimal
place to produce the Overall State Program Score. In the example below, the average of the
Indicator Scores for the title I Adult program is 1.00689 and is truncated to one decimal place for
an Overall State Program Score of 100.6%, as shown in the table above.

                           Title I Adult Results by Performance Indicator
                                  Actual Level of
 Primary Indicator of                                    Annual Report       Adjusted Level of
                                   Performance
    Performance                                             Value              Performance
                              (Numerator/Denominator)

Employment Rate—2nd
                                                             67.7%                75.2%
Quarter after Exit

Employment Rate—4th
                                                             61.2%                70.0%
Quarter after Exit

Median Earnings—2nd
                                       $4,350                $4,350               $3,890
Quarter after Exit

Credential Attainment                                        71.8%                55.2%

Measurable Skill Gains                                       72.0%                85.6%

Effectiveness in Serving
                                        N/A                   N/A                  N/A
Employers

                                                                                     Attachment II

                         Calculation—Adjusted Level of Performance

The Federal agencies estimate levels of performance based on participant characteristics and
economic conditions using an objective statistical model. The initial estimated level of
performance (Estimate0) is provided to states prior to the start of the program year during the
negotiations process and is a factor in reaching agreement on the negotiated level of
performance. After the close of the program year, the Federal agencies will re-estimate the
state’s performance (Estimate1) using the same objective model coefficients updated with the
characteristics of the actual participants served and the actual economic conditions of the state.

Federal agencies will subtract the first estimate from the second estimate for the adjustment
factor. The resulting positive or negative adjustment factor is added to the negotiated level of
performance to arrive at the adjusted level of performance. These calculations are shown in
Examples 1 and 2 below. Refer to section on Determining Performance Success or Failure of the
guidance for an explanation of how the adjusted level of performance is used to determine
performance success or failure.

     Example 1: Adjusted Level of Performance Calculation
     Expected Level of Performance                 68.9%
     Negotiated Level of Performance               70.2%
     Estimate0                                     75.5%
     Estimate1                                     73.7%
     Adjustment Factor
     Adjusted Level of Performance

     Example 2: Adjusted Level of Performance Calculation
     Expected Level of Performance                 68.9%
     Negotiated Level of Performance               70.2%
     Estimate0                                     75.5%
     Estimate1                                     78.3%
     Adjustment Factor
     Adjusted Level of Performance

                                                                                      Attachment III

                 WIOA Negotiations / Performance Process Flow Chart

Step 1:
             States: Submit Expected Levels              DOL/ED: Produce estimated
             of Performance for two program             levels of performance using the
                years in state plans or plan              statistical adjustment model.
               modifications (PYs A & B).

                             Step 2: Before PY A begins, states and
  Required                   DOL/ED arrive at Negotiated Levels of
    State                  Performance for PYs A & B by considering
   Actions                the four factors of performance negotiations.

   Step 3: PY A Concludes. DOL/ED                            Step 5: PY B Concludes. DOL/ED
process state data on actual outcomes &                   process state data on actual outcomes &
  re-estimate performance levels using                      re-estimate performance levels using
 the same objective model specification                   the actual characteristics of participants
and actual characteristics of participants                    & economic conditions of PY B.
    & economic conditions of PY A.                           The positive or negative difference
   The positive or negative difference                     between the DOL/ED estimates before
 between the DOL/ED estimates before                        and after PY B are used to adjust the
  and after PY A are used to adjust the                     negotiated levels of performance and
  negotiated levels of performance and                         calculate the adjusted levels of
     calculate the adjusted levels of                                   performance.
              performance.

  Step 4: DOL/ED determine states'                          Step 6: DOL/ED determine states'
 performance success or failure using                      performance success or failure using
actual results of PY A and the adjusted                   actual results of PY B and the adjusted
    levels of performance for PY A                            levels of performance for PY B

                                      For steps 4 and 6, please
                                       see "Attachment IV—
                                            Determining
                                      Performance Success or
                                              Failure"

                                                                                    Attachment IV

                      Determining Performance Success or Failure

                                             Step 2: After the close of PY A, DOL/ED will
                                             re-estimate the levels of performance for PY A
Step 1: DOL/ED estimate levels                using the same objective model specification,
 of performance for PYs A & B                  actual participant characteristics and actual
    prior to the start of PY A.               economic conditions of PY A. The positive or
                                              negative percentage point difference between
                                              the levels projected prior to the start of PY A
                                             and the levels re-estimated after the close of PY
                                                    A
                                                    A isis the
                                                            the PY
                                                                PY A
                                                                   A Adjustment  Factor.
                                                                     adjustment factor.

   Step 3: DOL/ED add the PY A
 Adjustment
  adjustment Factor
             factor toto the
                          the negotiated
                              Negotiated
Level ofperformance
level of Performanceto  todetermine
                            determinethe
                                       the
   Adjusted
    adjusted Level
             level ofofperformance.
                        Performance.

 Step 4:
Step   4: The
          The actual
               Actualresults
                       Results from
                             from  PYPYA
  A are
are thenthen  divided
          divided     by the
                  by the      Adjusted
                          adjusted  level                Performance Failure occurs if any
Level  of Performance
   of performance       to determine
                    to determine  the the                  Indicatorindicator
                                                        individual    Score is score
                                                                               belowis50%.
                                                                                       below
            Indicator
      individual      Scores.
                 indicator  scores.                                     50%.

  Step5:
  Step  5: The
            Theaverage
                averageofofindividual
                            Indicator                   Performance Failure occurs if any
Scores  across
 indicator     WIOA
            scores    coreWIOA
                   across   programs
                                  coreis               Overall State program
                                                       overall state Program score
                                                                             Score isis below
                                                                                        below
   the Overall State Program   Score.
programs is the overall state program                                  90%.
                 score.

  Step6:
  Step  6: The
            Theaverage
                  averageof ofindividual
                               Indicator
    Scores for
 indicator      a single
            scores   for a WIOA   core
                           single WIOA                  Performance Failure occurs if any
     program
  core  programacross   performance
                   across  performance                 Overall State indicator
                                                       overall state Indicator score
                                                                               Score isis below
                                                                                          below
    indicators
     indicators is
                 is the
                    the Overall  State
                        overall state                                   90%.
            Indicator
            indicator Score.
                        score.

                                                                                 Attachment V

                References—Joint Negotiations and Sanctions Guidance

 WIOA Section 116, Performance Accountability System

 WIOA Section 503, Transition Provisions

 Government Performance and Results Act of 1993 (GPRA) (Public Law 103-62; 107 Stat.
  285)

 GPRA Modernization Act of 2010 (Public Law 111-352; 124 Stat. 3866)

 WIOA Joint Rule for Unified and Combined State Plans, Performance Accountability, and
  the One-Stop System Joint Provisions Final Rule, 20 CFR parts 676, 677, and 678 and 34
  CFR parts 361 and 463

 Workforce Innovation and Opportunity Act (WIOA) Common Performance Reporting
  (OMB No. 1205-0526)

 DOL-only Performance Accountability, Information, and Reporting System
  (OMB No. 1205-0521)

 Required Elements for Submission of the Unified or Combined State Plan and Plan
  Modifications under the Workforce Innovation and Opportunity Act
  (OMB No. 1205-0522)

 “A Methodology for Statistical Adjustment under WIOA” report (2016), available at
  https://doleta.gov/performance/guidance/docs/WIOA_Statistical_Model_Methodology_Rep
  ort-6-24-2016.pdf

 TEGL 14-15: Workforce Innovation and Opportunity Act (WIOA) Requirements for Unified
  and Combined State Plans, available at
  https://wdr.doleta.gov/directives/attach/TEGL/tegl_14-15.pdf

 TEGL 10-16, Change 1: Performance Accountability Guidance for Workforce Innovation
  and Opportunity Act (WIOA) Title I, Title II, Title III, and Title IV Core Programs, available
  at https://wdr.doleta.gov/directives/attach/TEGL/TEGL_10-16-Change1.pdf

 TEGL 19-16: Guidance on Services provided through the Adult and Dislocated Worker
  Programs under the Workforce Innovation and Opportunity Act (WIOA) and the Wagner-
  Peyser Act Employment Service (ES), as amended by title III of WIOA, and for
  Implementation of the WIOA Final Rules, available at
  https://wdr.doleta.gov/directives/attach/TEGL/TEGL_19-16.pdf

 TEGL 03-17: WIOA Annual Performance Report Submission, available at
  https://wdr.doleta.gov/directives/attach/TEGL/TEGL_3-17.pdf

                                                                         Attachment V

 TEGL 6-17: Modification Requirements for Workforce Innovation and Opportunity Act
  (WIOA) Unified and Combined State Plans, available at
  https://wdr.doleta.gov/directives/attach/TEGL/TEGL_6-17.pdf

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