WIOA and UI Confidentiality: What States Should Know About the Recent Amendments to 20 CFR 603 11/22/2016

Today’s Moderator Suzanne Simonetta Chief, Division of Legislation Office of Unemployment Insurance USDOL

Pam Mertens Agnes Wells Supervisory UI Program Specialist USDOL

WIOA 101 Signed into law on July 22, 2014 Took effect July 1, 2015 First major legislative reform of the public workforce system in 15 years Supersedes the Workforce Investment Act of 1998 and amends the Adult Education and Family Literacy Act, the Wagner-Peyser Act, and the Rehabilitation Act of 1973

WIOA 101 Designed to help job seekers access employment, education, training, and support services to succeed in the labor market and to match employers with the skilled workers they need to compete in the global economy Reaffirms the role of the customer-focused one-stop delivery system Mandates enhanced and increased coordination among key employment, education, and training programs Focuses on performance accountability for WIOA core programs

Performance accountability and use of wage records Access to wage records has great priority under WIOA Use of wage records is mandatory for WIOA core program performance and eligible training provider performance reporting purposes Disclosure of wage records for certain DOL and ED evaluations is mandatory under WIOA 116(e)(4)

Reconciling 20 CFR Part 603 with WIOA States are prohibited from disclosing confidential UC information, except as permitted in 20 CFR 603 BUT WIOA requires the use of wage records for program accountability and evaluations How can states comply with WIOA requirements and 20 CFR Part 603?

UI Confidentiality 101 DOL’s confidentiality and disclosure regulations at 20 CFR Part 603 govern the disclosure of confidential UC information by States and State UC agencies Final rule published on September 27, 2006 Based on “methods of administration” requirement in Federal law

UI Confidentiality 101 States must maintain the confidentiality of “any UC information which reveals the name or any identifying particular about any individual or any past or present employer or employing unit, or which could foreseeably be combined with other publicly available information to reveal any such particulars.” Confidential UC information, including wage records, may not be disclosed except as permitted by 20 CFR Part 603

Changes to 20 CFR Part 603 Essential for state UI agencies to coordinate disclosure of wage records for WIOA performance accountability and program evaluations On August 19, 2016, the Department of Labor published the final rule for WIOA in the Federal Register – became effective October 18, 2016 Contains several clarifications to the UI confidentiality regulation to make it easier for states to comply with WIOA requirements: Required disclosures Definition of public official Performance of official duties

Mandatory disclosures Listed in 20 CFR 603.6 States are required to disclose all information necessary for the proper administration of the UC program – includes disclosures to claimants, employers, the IRS, and USCIS States are also required to disclose confidential UC information to the Railroad Retirement Board, SNAP, TANF, HUD, and other Federal programs

A new mandatory disclosure WIOA requires states to cooperate, “to the extent practicable”, in the following types of evaluations conducted by DOL and ED: Evaluations of core programs under WIOA; Evaluations under section 169, WIOA, to evaluate : Workforce Development Activities under WIOA Title 1; Other federally funded employment-related programs and activities authorized under other provisions of law; Evaluations under section 242(c)(2)(D), and sections 12(a)(5), 14, and 107 of the Rehabilitation Act of 1973 (applied with respect to programs carried out under Title I of that Act); and Evaluations under section 10(b) of the Wagner-Peyser Act.

A new mandatory disclosure Cooperation in these evaluations includes, in part, the timely provision of data and responses to surveys, and allowing site visits for the Secretary of Labor, the Secretary of Education, or their agents These disclosures must be done in accordance with appropriate privacy and confidentiality protections outlined in 20 CFR Part 603 “To the extent practicable’’ means that the disclosure would not interfere with the efficient administration of State UC law

Permissive disclosures Permissive disclosures – 20 CFR 603.5 The regulation permits disclosure under certain circumstances as long as the disclosure does not interfere with the proper and efficient administration of the UC program Three types of disclosures relevant to WIOA Disclosures on the basis of informed consent Disclosures to public officials for use in the performance of official duties Disclosures to agents or contractors of public officials

Informed consent States may disclose confidential UC information on the basis of informed consent The entity requesting the information must obtain a written, signed release from the individual or employer whose information is being sought The release must include a statement specifically identifying the information to be disclosed, the specific purpose for the disclosure, and all parties who may receive the information The purpose for the disclosure must be limited to providing a service or benefit to the individual, or carrying out administration or evaluation of a public program to which the release pertains

Disclosures to public officials Under 20 CFR 603.5(e), disclosure of confidential UC information to a public official for use in the performance of his or her official duties is permissible when authorized by State law “Public official” is defined as “an official, agency, or public entity within the executive branch of Federal, State, or local government who (or which) has responsibility for administering or enforcing a law, or an elected official in the Federal, State, or local government”

Expanded definition of “public official” Under the revised regulation, the definition of “public official” specifically includes: Public postsecondary educational institutions which are part of the State's executive branch Public postsecondary educational institutions which are independent of the State’s executive branch Publicly governed, publicly funded community and technical colleges Performance accountability and customer information agencies (PACIAs) The chief elected official of a local Workforce Development Area A State educational authority, agency, or institution, as those terms are used in FERPA, to the extent they are public entities

What are “official duties?” “Official duties” is defined in 20 CFR 603.5(e)(1) to mean administration or enforcement of law, or the execution of the official responsibilities of a Federal, State, or local elected official Administration of law includes research related to the law administered by the public official Execution of official responsibilities does not include solicitation of contributions or expenditures to or on behalf of a candidate for public or political office or a political party

What are “official duties?” Under the revised regulation, the term “official duties” now includes the use of confidential UC information for the following limited purposes: State and local performance accountability under WIOA sec. 116, including eligible training provider performance accountability under WIOA secs. 116(d) and 122; The requirements of discretionary Federal grants awarded under WIOA; or As otherwise required for education or workforce training program performance accountability and reporting under Federal or State law.

What about non-public service providers? Only public postsecondary educational institutions that fit the 603.2 definition of public official may receive confidential UC information All other education service providers may receive only aggregate information, unless they obtain a written, signed informed consent for each individual whose information is being sought

Disclosures to agents or contractors 20 CFR 603.5(f) permits disclosure of confidential UC information to an agent or contractor of a public official The data sharing agreement must hold the public official responsible for ensuring that the agent or contractor complies with all safeguards and security requirements The agent or contractor may not redisclose the information except as permitted by 20 CFR 603.9(c)

Agreements Before any disclosures take place, 20 CFR 603.10 requires the State UC agency to enter into a written, enforceable agreement with the agency or entity requesting confidential UC information This is required for disclosures on the basis of informed consent and for disclosures to public officials and their agents or contractors

Requirements for agreements Agreements must include: A description of the specific information to be furnished and the purposes for which the information is sought Provision for paying the State or State UC agency for the costs of furnishing the information – see 20 CFR 603.8 Provision for safeguarding the information disclosed – see 20 CFR 603.9 Provision for on-site inspections of the agency, entity, or contractor to ensure that the requirements of the agreement are being met

Overlap with FERPA requirements 603.10 requirements are similar to requirements under FERPA for disclosures to authorized representatives – see Attachment 2 in joint guidance Agreement between state UI agency and education authority must contain all of the elements required under FERPA and 603.10

Safeguards and security requirements The state UC agency must require the recipient to: Use disclosed information only for purposes authorized by law and consistent with the agreement Store information in such a way that unauthorized persons cannot access it Undertake precautions to ensure that only authorized personnel are given access Sign an acknowledgment that all personnel have been instructed about confidentiality requirements and penalties specified in state law for unauthorized disclosure Dispose of information when the purpose for disclosure is finished Maintain a system sufficient to allow an audit of compliance with safeguards and security requirements

Payment of costs In general, states may not use grant funds to pay any of the costs of making any disclosure of confidential UC information Grant funds may only be used to pay the costs of only those disclosures that are necessary for the proper administration of the UC program Costs must be paid by the recipient of the information, either in advance or by way of reimbursement Agreement must include provision for payment of costs

DOL final rule issued August 19, 2016 UIPL No DOL final rule issued August 19, 2016 UIPL No. 20-15 – Unemployment Insurance and the Workforce Innovation and Opportunity Act of 2014 TEGL No. 7-16 – Data Matching to Facilitate WIOA Performance Reporting WIOA Resource page: https://www.doleta.gov/wioa/ WIOA Advisories Quick Link: https://ion.workforcegps.org/announcements/2015/09/17/18/14/Q uick_Link_to_WIOA_Advisories_and_Directives

Office of Unemployment Insurance Agnes Wells Telephone: 202-693-2996 Email: Information.StateUILegal@dol.gov Family Policy Compliance Office Telephone: 202-260-3887 Email: FERPA@ed.gov Website: ww.ed.gov/fpco