1. WIOA: Fiscal & Legal Issues
Michael Brustein, Esq. & Steven Spillan, Esq.
&
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2. Agenda Overlap With New Perkins V Funding Trends DOL Actions
State Plan Considerations
Infrastructure Costs
Coastal Counties Federal Case
Pass-Through Authority
Funding Trends
DOL Actions
Waivers
Regulatory Reform?
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3. Definitions, State Plans, and Career Services
Overlap With Perkins V
Definitions, State Plans, and Career Services
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4. Overlap with Perkins V Became law on July 31, 2018
Includes multiple definitions from WIOA
Career pathways
In-demand industry sector or occupation
Industry or sector partnership
Out-of-school youth
Out-of-workforce individual
Recognized postsecondary credential
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5. Career Pathways vs. Programs of Study
Career Pathways: Combination of rigorous & high-quality education, training, & other services:
Aligns with skill needs of State/regional industries
Prepares for success in any secondary/postsecondary ed options
Counseling to support ed and career goals
Ed & workforce prep for specific occupational cluster
Organized to accelerate ed and career advancement
Enables attainment of secondary diploma or equivalent and at least 1 recognized postsecondary credential
Helps enter or advance within a specific occupational cluster
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6. Career Pathways vs. Programs of Study
Programs of Study: Coordinated, nonduplicative sequence of academic and technical content:
Incorporates challenging State academic standards under ESSA
Addresses academic and technical knowledge and skills, including employability skills
Aligned with needs of industries in State/regional/tribal economy
Progresses in specificity
Multiple entry and exit points incorporating credentialing
Culminates in attainment of recognized postsecondary credential
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7. Career Pathways in Perkins V
Rural Reserve (Sec. 112(c)(2)(B)):
Eligible agency may award grants to eligible recipients for CTE activities in certain areas in order to “promote the development, implementation, and adoption of programs of study or career pathways aligned with State-identified high-skill, high-wage, or in-demand occupations or industries.”
Permissible use of State Leadership Funds (Sec. 124(b)(12),(19)):
Support for the development, implementation, and expansion of programs of study or career pathways in areas declared to be in a state of emergency under section 501 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5191).
Integrating and aligning programs of study and career pathways.
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8. Local use: Career Pathways
Sec. 135(b)(5)(H): plan and carry out elements that support the implementation of CTE programs and programs of study and that result in increasing student achievement of the local levels of performance, which may include:
Where applicable, coordination with other education and workforce development programs and initiatives, including career pathways and sector partnerships developed under WIOA and other federal laws and initiatives that provide students with transition-related services, including IDEA
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9. Out-of-School Youth
Not attending any school (as defined under State law) and not younger than age 16 or older than age 24; and one or more of the following:
A school dropout.
A youth who is within the age of compulsory school attendance, but has not attended school for at least the most recent complete school year calendar quarter.
A recipient of a secondary school diploma or its recognized equivalent who is a low-income individual and is basic skills deficient or an English language learner.
An individual who is subject to the juvenile or adult justice system.
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10. Out-of-school youth
A homeless individual, a homeless child or youth, a runaway, in foster care or has aged out of the foster care system, a child eligible for assistance under section 477 of the Social Security Act (42 U.S.C. 677), or in an out-of-home placement.
An individual who is pregnant or parenting.
A youth who is an individual with a disability.
A low-income individual who requires additional assistance to enter or complete an educational program or to secure or hold employment.
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11. Funding for Out-of-school Youth
Permissible use of State Leadership Funds (Sec. 124(b)(10)):
Support for CTE programs for adults and out-of-school youth concurrent with their completion of their secondary school education in a school or other educational setting
Sec. 135(b)(5)(N): plan and carry out elements that support the implementation of CTE programs and programs of study and that result in increasing student achievement of the local levels of performance, which may include:
Providing CTE, in a school or other educational setting, for adults or out-of-school youth to complete secondary school education or upgrade technical skills
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12. Wioa/Perkins State Plans
Initial 4-year WIOA plans in place for July 1, 2016
New 4-year plan for July 1, 2020
Perkins V allowing for one-year transition plan for July 1, 2019
4-year State plan for July 1, 2020
WIOA Unified Plan should consider overlapping efforts of Perkins V State plans…or
WIOA Sec. 103 – Combined State Plans
Covers Core WIOA Programs & at least 1 partner program…including Perkins
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13. Overlapping Cost Considerations
Perkins V Sec. 135(b)(1): Using funds to provide career exploration and development activities, including:
Intro course/activities
Career and labor market information on: occupational supply and demand; educational requirements; info aligned to State, local, tribal economic priorities; and employment sectors
Counseling on postsecondary ed and career options
Advancing knowledge of career opportunities and assist with decision on future education and employment goals
Providing strong experience and comprehensive understanding of all aspects of an industry
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14. Basic Career Services
Determinations eligibility/co-enrollment among these programs;
Outreach, intake, and orientation;
Initial skill assessment of skill levels;
Referrals;
Financial assistance from other programs?
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15. Individualized Career Services
Comprehensive and specialized skill assessments of adults and dislocated workers
Group Counseling
Individual Counseling
Career Planning
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16. AEFLA Services Outreach, intake, and orientation
Initial skills assessment of skill levels, including:
Referring and coordinating with other programs and services
Provide information on:
Eligible providers
Availability of supportive services or assistance and appropriate referrals
Integrated education and training programs
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17. The Never-ending Issue:
Infrastructure Costs
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18. Infrastructure Costs
34 CFR : Non-personnel costs that are necessary for the general operation of the one-stop center
One-stop partners must enter into MOU with the local WDB (34 CFR )
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19. Source of Funding (34 CFR 463.720)
WIOA Title I Programs: Program funds and/or administrative funds
Other One-Stop Partner Programs: Limited to the program’s administrative funds, as appropriate
Adult Education Program: Must be paid from local administration
Perkins: Must be paid from local administration of postsecondary level programs
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20. Determining Costs Proportionate Share: Relative Benefit:
Use of the one-stop by customers; square footage occupied by the partner program; or other allocation base consistent with UGG
Relative Benefit:
Using reasonable methods, agreed to by all partners, that considers allocability
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21. Possible Cost Allocation Bases
Cost Pool
Possible Allocation Bases
Facilities: Building rent, maintenance costs, utilities, tenant improvements, or any other similar costs related to the physical structure housing the one-stop center.
Square footage occupied by each partner agency as compared to the total space. Workstation usage by partners as compared to total workstations.
Career Services: Staff and benefit costs, development of common forms for case management, and similar costs.
Time distribution system; numbers of clients eligible for specific program; weighted participation numbers.
One-Stop Center General Operations Staff: Costs of the receptionist, staff of the resource center.
Number of partner program participants.
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22. Career Services: Use & benefit
Must provide, not necessarily directly on-site at One-stop.
Option 1. Program staff physically present;
Option 2. Properly trained staff member from a different partner program physically present; or
Option 3. Direct linkage through technology.
TEGL No (Jan. 2017)
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23. Pass-Through Authority
Coastal Counties Workforce, Inc. v. Paul LePage
U.S. District Court District of Maine ( )
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24. Underlying Facts
Governor LePage (R-ME) sought DOL approval to bypass LWDBs
Denied by DOL Sec. Acosta
Withheld Title I funds from 3 LWDBs in the State
Eventually provided funding with requirement that 60% of funding go directly to training services
Coastal Counties, Inc. filed federal lawsuit
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25. Judge’s Decision
UGG does give pass-through entities right to impose additional conditions on subawards…but limited to financial and accounting measures
Does not give pass-through the right to “impose new substantive conditions on the receipt of funds absent noncompliance with the regulations by the recipient.”
Significantly limits pass-through authority
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26. “How much $$$ are we getting?”
Funding Updates
“How much $$$ are we getting?”
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27. Dislocated Worker Training $1,040,860,000
Program
FY 2018
FY 2019
Adult Training
$845,556,000
Dislocated Worker Training
$1,040,860,000
Youth Training
$903,416,000
Adult Education
$616,955,000
$641,955,000
Vocational Rehabilitation
$3,184,849,000
$3,260,627,000
Perkins
$1,192,598,000
$1,262,598,000
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28. What are they going to do?
DOL Actions
What have they done?
What are they going to do?
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29. WIOA Waivers
Waivers Granted:
State WDB allowed to takes over roles and responsibilities of local boards
Alaska, Idaho
State must still include local input
What about Maine case?
State may waive obligation of eligible training providers to collect performance data on all students in a training program
Idaho, Michigan, Missouri, North Carolina, Puerto Rico, South Carolina, South Dakota
State must still collect all performance data and consider student outcomes (employment/earnings)
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30. WIOA Waivers (cont.) Waive 75% requirement for out-of-school youth
CNMI, Indiana, Michigan, Minnesota, Missouri, New York, Ohio, Puerto Rico, South Dakota, Texas
Increase on-the-job training employer reimbursement up to 90% for business with 50 or fewer employees
Massachusetts, Puerto Rico
Assign a single LWDB to multiple planning regions
Nebraska
ITAs for in-school-youth
Ohio, South Dakota, Utah
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31. WIOA Waivers (cont.)
Waived limitation on use of funds for capitalization of business
Texas and Puerto Rico, in light of hurricane damage, waiver approved for up to $5,000 per affected business
SWDB Membership Requirements
Approved Indiana
Denied Virginia
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32. Moving Forward?
Various denied waiver requests were accompanied by the following language from DOL:
DOL is proposing statutory language to “give governors more flexibility to meet the workforce needs of their states.”
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33. Regulatory Reform?
Trump Administration looking to rescind unnecessary burdensome regulations
WIOA not targeted…so far
Administration Policy: Every new reg means 2 old regs must go
Current regulatory agenda for DOL does not include WIOA programs:
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34. Questions?
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35. 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.
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