IMPLEMENTING WIOA PROGRAMS WITHOUT FEDERAL REGULATIONS MICHAEL BRUSTEIN, ESQ. ERIN AUERBACH, ESQ. BRUSTEIN & MANASEVIT, PLLC SPRING FORUM 2016 Brustein & Manasevit, PLLC © All rights reserved. 1

AGENDA Background State and Local Plans One-Stop Operators and Infrastructure Costs Provision of Direct Services Allowable Costs Under Title II (AEFLA) 2 Brustein & Manasevit, PLLC © All rights reserved.

BACKGROUND 3 Brustein & Manasevit, PLLC © All rights reserved.

IMPORTANT DATES Signed into Law July 2014 Effective Date: July 1, 2015 Unified/Combined State Plans Due: April 1, 2016 April 16, 2015: Notice of Proposed Rule Making (NPRM) 1/22/16: Final regs must be published Now June 2016??? New Accountability Provisions Effective: July 1, Brustein & Manasevit, PLLC © All rights reserved.

Many provisions delayed until 7/1/17 5 Brustein & Manasevit, PLLC © All rights reserved.

FUNDING $816 million for adult funding $1.2 billion for dislocated workers $873 million for youth funding $680 million for Wagner-Peyser $3.16 billion for Voc Rehab Levels not likely to increase 6 Brustein & Manasevit, PLLC © All rights reserved.

STRUCTURE OF WIOA Title I – Workforce Development Activities Youth Adult and Dislocated Worker Job Core Title II – Adult Education and Literacy Title III – Wagner-Peyser Act Title IV – Amendments to Rehabilitation Act Vocational Rehabilitation Services Title V – General Provisions 7 Brustein & Manasevit, PLLC © All rights reserved.

PURPOSE SECTION 2 Increase access to employment, education and training Support alignment of workforce investment, education, and economic development systems Improve the delivery of services Increase prosperity of workers and economic growth in communities 8 Brustein & Manasevit, PLLC © All rights reserved.

DEFINITIONS Career Pathway – Section 3(7) Core Programs – Section 3(13) Adult and Dislocated Worker Youth Wagner-Peyser Adult Education Vocational Rehabilitation Local Areas – Section 3(32) 9 Brustein & Manasevit, PLLC © All rights reserved.

STATE AND LOCAL PLANS 10 Brustein & Manasevit, PLLC © All rights reserved.

STATE PLAN Per the Statute, State Plans were due March 3, However, “pursuant to the orderly transition authority in section 503 of WIOA, the Departments of Labor and Education will consider as timely an initial Unified or Combined State Plan that is submitted by April 1, 2016” FAQ, Jan. 21, Brustein & Manasevit, PLLC © All rights reserved.

STATE PLAN Two Options: Unified State Plan – Section 102 Combined Plan – Section Brustein & Manasevit, PLLC © All rights reserved.

STATE PLAN – UNIFIED Core Programs Strategic Plan 4-Year Strategy Modifications after 2 years Subject to approval of ED and Labor 13 Brustein & Manasevit, PLLC © All rights reserved.

STATE PLAN – COMBINED Core Programs PLUS one or more “partner” programs Would not have to submit separate state plan for partner programs Parts of the plan related to partner program(s) needs to be in compliance with terms of that program’s statute and requirements. Joint planning and coordination 4-Year Strategy Approval by “appropriate Secretary” 14 Brustein & Manasevit, PLLC © All rights reserved.

PARTNER PROGRAMS Listed Programs – Section 103(a)(2) Programs authorized under the Carl D. Perkins Career and Technical Education Act of 2006 Programs authorized under part A of title IV of the Social Security Act (42 U.S.C. 601 et seq.) Programs authorized under section 6(d)(4) of the Food and Nutrition Act of 2008 (7 U.S.C. 2015(d)(4)) Work programs authorized under section 6(o) of the Food and Nutrition Act of 2008 (7 U.S.C. 2015(o)). Activities authorized under chapter 2 of title II of the Trade Act of 1974 (19 U.S.C et seq.). Activities authorized under chapter 41 of title 38, United States Code. Programs authorized under State unemployment compensation laws (in accordance with applicable Federal law). Programs authorized under title V of the Older Americans Act of 1965 (42 U.S.C et seq.). Employment and training activities carried out by the Department of Housing and Urban Development. Employment and training activities carried out under the Community Services Block Grant Act (42 U.S.C et seq.). Programs authorized under section 212 of the Second Chance Act of 2007 (42 U.S.C ). 15 Brustein & Manasevit, PLLC © All rights reserved.

LOCAL PLANS Submitted by Local Board in partnership with chief elected official 4 years, modifications after 2 years Support state strategy Approval by Governor 16 Brustein & Manasevit, PLLC © All rights reserved.

INDICATORS OF PERFORMANCE Primary Indicators of Performance (Section 116(b)): Percentage of program participants in unsubsidized employment during the 2nd quarter after exit from the program; Percentage of program participants in unsubsidized employment during the 4th quarter after exit from the program; Median earnings of program participants in unsubsidized employment during the 2 nd quarter after exit from the program; Percentage of program participants who obtain a recognized post-secondary credential, or a secondary school diploma or its recognized equivalent during participation in or within 1 year after exit from the program; 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; and Indicators of effectiveness in serving employers established pursuant to Sec. 116(b)(iv) of WIOA. 17 Brustein & Manasevit, PLLC © All rights reserved.

PERFORMANCE NEGOTIATIONS Some indicators may be adjusted after release of final regulation. For certain indicators for which there is little or no historical data, DOL and ED will use “phased-in” approach Program Memorandum OCTAE 16-1 (March 9, 2016) 18 Brustein & Manasevit, PLLC © All rights reserved.

ONE-STOP CENTERS AND INFRASTRUCTURE COSTS 19 Brustein & Manasevit, PLLC © All rights reserved.

ONE-STOP CENTERS SECTION 121 One comprehensive one-stop center for each local area (Section 121(e)(2)(A)) Local area may also have affiliate one-stop centers (Section 212(e)(2)(B)) Local boards certify one-stop center every three years (Section 121(g)(1)) 20 Brustein & Manasevit, PLLC © All rights reserved.

ONE-STOP PARTNERS SECTION 121(b) Core Programs Career and technical Education (Perkins) Community Service Block Grant Indian and Native American Programs HUD Employment and Training Programs Job Corps Local Veterans’ Employment and Representatives and Disables Veterans’ Outreach Program National Farmworker Jobs Program Second Chance Act programs Senior Community Service Employment Program TANF (Governor can waive requirement) Trade Adjustment Assistance Programs YouthBuild 21 Brustein & Manasevit, PLLC © All rights reserved.

ONE-STOP OPERATORS One-Stop Operators Must be competitively selected at least once every 4 years. (WIOA Sec. 121(d); Proposed 20 CFR ) States use same process for non-federal procurement Locals must use 2 CFR Part 200 Procurement Rules 22 Brustein & Manasevit, PLLC © All rights reserved.

ONE-STOP OPERATORS Sole Source (Proposed 20 CFR (d)(3)): Analysis of market conditions and other factors lead to a determination that it is necessary to use sole-source procurement because There is only one entity that could serve as an operator; or Unusual and compelling urgency will not permit a delay resulting from competitive solicitation; or Results of the competition were determined to be inadequate. 23 Brustein & Manasevit, PLLC © All rights reserved.

ONE-STOP OPERATORS Sole Source (Proposed 20 CFR ) Written documentation must be prepared and maintained concerning the entire process of making such a selection. Must include appropriate conflict of interest policies and procedures 24 Brustein & Manasevit, PLLC © All rights reserved.

ONE-STOP OPERATOR Local Board can be One-Stop Operator As long as appropriate firewalls and conflict of interest policies and procedures are in place (Proposed 20 CFR ) If sole source: only with agreement of the chief elected official in the local area and the Governor (Proposed 20 CFR (d)) 25 Brustein & Manasevit, PLLC © All rights reserved.

One-stop operator as an individual person? 26 Brustein & Manasevit, PLLC © All rights reserved.

Co-locating the one stop on the college campus? 27 Brustein & Manasevit, PLLC © All rights reserved.

MEMORANDUM OF UNDERSTANDING SECTION 212(c) Local boards negotiate MOU with every one-stop partner. MOUs are reviewed every three years. MOUs describe: Services provided Referral methods Funding of shared services and infrastructure costs 28 Brustein & Manasevit, PLLC © All rights reserved.

INFRASTRACTURE COSTS What are they? Nonpersonnel costs that are necessary for general operation. Section 121(h)(4) What went wrong with WIA? 29 Brustein & Manasevit, PLLC © All rights reserved.

INFRASTRUCTURE COSTS Local option – Section 121(h)(1)(A) Methods agreed upon by Local Board, chief elected officials, and one- stop partners 30 Brustein & Manasevit, PLLC © All rights reserved.

INFRASTRUCTURE State option – Section 121(h)(2) Automatic if no agreement under local option Governor will determine amount (no more than 3% for Workforce and Wagner-Peyser programs and 1.5% of total grant amount for most other partner programs) from each partner program Determined amount must come from administrative set-aside 31 Brustein & Manasevit, PLLC © All rights reserved.

INFRASTRUCTURE COSTS Impact on partner programs? 32 Brustein & Manasevit, PLLC © All rights reserved.

PROVISION OF DIRECT SERVICES 33 Brustein & Manasevit, PLLC © All rights reserved.

SERVICE PROVIDERS SECTION 122 State establishes criteria for providers Local board may establish additional criteria State maintains list of providers 34 Brustein & Manasevit, PLLC © All rights reserved.

YOUTH SERVICE PROVIDERS Local areas must conduct a full and open competition to secure youth service providers according to the Federal procurement guidelines at 2 CFR parts 200 and 2900, in addition to applicable State and local procurement laws. Section 123(a) (Proposed 20 CFR (a)(2)) Sole source only when Local Board determines there is an insufficient number of eligible providers of youth workforce investment activities in the local area. Section 123(b) (Proposed 20 CFR (a)(3)) 35 Brustein & Manasevit, PLLC © All rights reserved.

YOUTH SERVICE PROVIDERS Participant eligibility and use of funds mostly the same Section Brustein & Manasevit, PLLC © All rights reserved.

ADULT & DISLOCATED WORKER SERVICE PROVIDERS Services provided (i) directly through one-stops OR (ii) through contracts with service providers (NEW). Section 134(c)(2)(C) Training services must be provided in a manner that maximizes consumer choice. Section 134(c)(3)(F) 37 Brustein & Manasevit, PLLC © All rights reserved.

ADULT & DISLOCATED WORKER SERVICE PROVIDERS Services provided directly through one-stop Individual Training Accounts (ITAs) Eligible consumer chooses provider and payment is arranged through ITA Section 134(c)(3)(F)(iii) 38 Brustein & Manasevit, PLLC © All rights reserved.

ADULT & DISLOCATED WORKER SERVICE PROVIDERS NEW: Services may be provided through a contract if: Consumer choice requirements met; On the Job Training (OJT); Where a Local Board determines there are an insufficient number of eligible providers; Local plan must describe how this determination was made and the process used for contracting for services. If the Local Board determines a community-based organization (CBO) or other private organization provides effective training services to individuals with barriers to employment; Local Board must develop criteria to show that the program is effective. Training for multiple individuals in in-demand industry sectors or occupations, as long as the contract does not limit the individual’s consumer choice; or Contract is pay-for-performance. Section 134(c)(3)(G)(ii); (Proposed 20 CFR ) 39 Brustein & Manasevit, PLLC © All rights reserved.

PAY-FOR-PERFORMANCE Contracting mechanism that establishes specific benchmarks that must be achieved in order for the contractor to receive payment. Can only be used as part of larger P-F-P strategy by the Local Board (10% cap), which must include (Section 3(47)) : Contracts, each of which shall specify a fixed amount that will be paid to an eligible service provider based on the achievement of specified levels of performance on the primary indicators of performance described in section 116(b)(2)(A) for target populations as identified by the local board, within a defined timetable, and which may provide for bonus payments to such service provider to expand capacity to provide effective training; A strategy for independently validating the achievement of the performance on these contracts; and A description of how the State or local area will reallocate funds not paid to a provider because the achievement of the performance did not occur. 40 Brustein & Manasevit, PLLC © All rights reserved.

ADULT & DISLOCATED WORKER SERVICE PROVIDERS Eligibility and use of funds mostly the same Section 134(c) and (d) 41 Brustein & Manasevit, PLLC © All rights reserved.

ALLOWABLE COSTS UNDER TITLE II Adult Education Family Literacy Act (AEFLA) 42 Brustein & Manasevit, PLLC © All rights reserved.

ALLOWABLE COSTS Adult Education and Literacy Activities include: Adult education Literacy Workplace adult education and literacy Family literacy English language acquisition Integrated English literacy and civics education Workforce preparation activities (NEW) Integrated education and training Section 203(2) 43 Brustein & Manasevit, PLLC © All rights reserved.

“WORKFORCE PREPARATION” SECTION 203(17) Basic academic Critical thinking Digital literacy Self-management 44 SKILLS Brustein & Manasevit, PLLC © All rights reserved.

WORKFORCE PREPARATION Skills necessary to successfully transition to and complete postsecondary education, training; and employment 45 Brustein & Manasevit, PLLC © All rights reserved.

WORKFORCE PREPARATION What does this mean for providers? 46 Brustein & Manasevit, PLLC © All rights reserved.

PROGRAMMATIC FISCAL REQUIREMENTS 25% Match (Section 222(b)) Maintenance of Effort – 90% (Section 241(b)) Supplement not Supplant (Section 241(a)) 47 Brustein & Manasevit, PLLC © All rights reserved.

QUESTIONS? 48 Brustein & Manasevit, PLLC © All rights reserved.

LEGAL DISCLAIMER This presentation is intended solely to provide general information and does not constitute legal advice or a legal service. This presentation does not create a client- lawyer relationship with Brustein & Manasevit, PLLC and, therefore, carries none of the protections under the D.C. Rules of Professional Conduct. Attendance at this presentation, a later review of any printed or electronic materials, or any follow-up questions or communications arising out of this presentation with any attorney at Brustein & Manasevit, PLLC does not create an attorney-client relationship with Brustein & Manasevit, PLLC. You should not take any action based upon any information in this presentation without first consulting legal counsel familiar with your particular circumstances. 49 Brustein & Manasevit, PLLC © All rights reserved.