Federal Register /Vol. 80, No. 73 /Thursday, April 16, 2015 / Proposed Rules 20583-20598
B. Performance Accountability Under Title I of the Workforce Innovation and Opportunity Act
(20 CFR Part 677; 34 CFR Part 361, Subpart E; 34 CFR Part 463, Subpart I)
1. Introduction
Section 116 of the WorkforceInnovation and Opportunity Act(WIOA) establishes performanceaccountability indicators andperformance reporting requirements toassess the effectiveness of States andlocal areas in achieving positiveoutcomes for individuals served by thecore programs. The core programs aredefined in sec. 116(b)(3)(A)(ii) of WIOAto include the adult, dislocated worker,and youth programs under title I ofWIOA, the AEFLA programs under titleII; the Employment Services authorizedby the Wagner-Peyser program underthe Wagner-Peyser Act as amended bytitle III (‘‘Employment Services’’); andthe Vocational Rehabilitation programunder the Rehabilitation Act of 1973, asamended by title IV.
With a few exceptions, including thelocal accountability system under sec.116(c) of WIOA, the performanceaccountability requirements applyacross all of the core programs. It isinstructive to note that sec. 116 islocated in the statute under subtitle A,which is System Alignment. This is anhistoric opportunity to align definitions,streamline performance indicators, andintegrate reporting for each of the coreprograms to the extent practicable,while implementing program-specificrequirements. Through these proposedjoint regulations, the Departments arelaying the foundation for theestablishment of a performanceaccountability system that serves allcore programs and their targetedpopulations in a manner that iscustomer-focused and that supports anintegrated service design and deliverymodel. In addition, WIOA requiresadditional programs, including JobCorps, Native American programs, theMigrant and Seasonal Farmworkerprograms, and the YouthBuild program,to use the same performanceaccountability indicators as the coreprograms, as provided in 29 CFR part686 and 29 CFR part 684. This willbetter align both the core programs andother education and training programsacross the workforce system. Further,DOL plans to include other workforceprograms under its purview in thisstreamlining effort, including the Jobsfor Veterans State Grants (JVSG)program as authorized by the Jobs forVeterans Act, other formula andapplicable competitive grant programsadministered by DOL.
As with the planning requirementsdiscussed previously, the differingdefinitions of ‘‘State’’ raise potentialinconsistencies as to the applicability ofthe performance accountability systemrequirements of sec. 116 of WIOA forpurposes of the outlying areas and theiradministration of the core programs.Section 116, which consistentlyreferences States, establishes a commonperformance system to measure theeffectiveness of the States and localareas in achieving positive outcomes forparticipants in the core programs.However, sec. 116 does not specificallyreference the outlying areas. Sections126 and 131 of WIOA require thatoutlying areas comply with all of therequirements of title I as a prerequisiteto their receipt of title I funds, althoughneither section specifically referencesthe requirements of sec. 116. Thesilence in sec. 116 is especiallyimportant with regard to the coreprograms funded under title I of WIOA,and administered by the Department ofLabor, since sec. 3 defines the terms‘‘State’’ and ‘‘outlying area’’ separately.Reading title I, and sec. 116 specifically,in isolation, suggests that theperformance system does not apply tothe outlying areas.
Unlike the title I programs, the AdultEducation and Vocational Rehabilitationprograms under titles II and IV,respectively, clearly require the outlyingareas to comply with the performanceaccountability system requirements ofsec. 116 of WIOA. Section 212 appliesthe performance provisions in sec. 116to all of the programs and activitiesauthorized in title II, which includes theadult education programs and activitiesadministered by the eligible agencies inthe outlying areas. Additionally, sec.106 of the Rehabilitation Act, asamended by title IV of WIOA, requiresthat States—which includes theoutlying areas—comply with theperformance accountability systemrequirements of sec. 116 of WIOA.
Given the use of the term ‘‘State’’ insec. 116 and the differing definitions forthat term for the various core programs,ambiguity exists within WIOA as to theapplicability of the performanceaccountability system requirementswith regard to the core programsadministered by the Department ofLabor under title I of WIOA.Nevertheless, WIOA is clear that thecore programs funded under titles II andIV are subject to these requirements. Forthis reason, there are two options toresolve this potential inconsistency,thereby ensuring that the performanceof the core programs in the outlyingareas can be measured to ensureprogrammatic effectiveness.
The first option would be to subjectthe title I WIOA core programsadministered by the outlying areas tothe sec. 116 performance system, asWIOA requires of the core programsfunded under titles II and IV. Thesecond option would be not to apply theperformance accountability systemrequirements of sec. 116 of the title IWIOA programs administered by theoutlying areas, since title I is less clearin the applicability of theserequirements to the outlying areas,while requiring the outlying areasadministering the Adult Education andVocational Rehabilitation Servicesprograms, funded under titles II and IVrespectively, to comply with the sec.116 requirements since these titlesclearly require such compliance. Thisoption, while perhaps most in line withthe plain meaning of the relevantstatutory provisions, is contrary to thepurpose of WIOA generally and theperformance accountability systemestablished in sec. 116 specifically.Moreover, this option would treat thevarious core programs differently,thereby causing potential confusionduring implementation and could resultin disparate treatment with regard tosanctions.
The Departments specifically requestcomments on the options proposedabove, as well as any additional options,and which option the Departmentsshould adopt.
In the section-by-section discussionsof each proposed performanceaccountability provision below, theheading references the proposed DOLCFR part and section number. However,the Department of Education proposesin this joint NPRM identical provisionsat 34 CFR part 361, subpart E (under itsState Vocational Rehabilitation ServicesProgram regulations) and at 34 CFR part463, subpart I (under a new CFR part forAEFLA regulations). For purposes ofbrevity, the section-by-sectiondiscussions for each Department’sprovisions appear only once—inconjunction with the DOL sectionnumber—and constitute theDepartments’ collective explanation andrationale for each proposed provision.
§ 677.150 What definitions apply toWorkforce Innovation and OpportunityAct performance measurements andreporting requirements?
Proposed § 677.150 defines keyperformance-related terms which Statesmust use in their reporting onperformance calculations. TheDepartments propose these definitionsto facilitate consistent reporting acrossthe States. Under WIA, States createddiffering definitions of key terms forperformance reporting, which resultedin inconsistent reporting and preventedthe Departments from fully evaluatingthe effectiveness of its workforce andeducational programs.
The definitions the Departments areproposing in these regulations aresufficiently broad to apply across coreprograms and other programsauthorized by this statute, to create anintegrated performance accountabilitysystem, and to support clarity andalignment of performance metrics andcomparability among the programs andStates.
Proposed § 677.150 definesparticipant, reportable individual, andexit.
Proposed § 677.150(a) proposes adefinition of ‘‘participant’’ across thecore programs because participants arespecifically identified in the statute asincluded in performance calculations.The definition of participant establishesa common point of measurement atwhich an individual is meaningfullyengaged in a core program. Thismeasurement point takes intoconsideration the unique purposes andcharacteristics of each program and theways in which an individual mayaccess, and ultimately engage in,services in each of the core programs.The proposed definition does notattempt to define the activities leadingup to participation in the same wayacross all of the core programs, butinstead seeks to establish a commonpoint in service design and delivery thatan individual reaches regardless of theprogram in which he or she is enrolled.In each program, an individual mustmeet a specific programmatic thresholdat which he or she begins receivingservices regardless of the program. Theproposed definition takes into accountthe unique processes of each program tomeet such thresholds and, thus,participant is defined in a manner thatworks across the core programs. Theproposal defines participant as areportable individual who has receivedstaff-assisted services after satisfying allapplicable programmatic requirementsfor the provision of services, such as theeligibility determination. This proposeddefinition establishes a commonapproach to establishing a minimumparticipation threshold that isappropriate to the services provided byeach program. This approach alsoensures consistent definition ofparticipant within each program. Thisdefinition excludes self-serviceinteraction with the program andminimal resources are spent on theirbehalf. Such individuals are reportable,as defined below, because they havecontact with the system but are notparticipants and, thus, are not includedin performance calculations.
Specifically for Wagner-PeyserEmployment Services, only thosereportable individuals who receivedstaff-assisted services would beincluded in performance calculations.For WIOA adults, reportable individualswho receive staff assisted serviceswould be considered participants and,thus, be included in performancecalculations. For WIOA dislocatedworkers, reportable individuals who aredetermined eligible and receive a staffassistedservice would be consideredparticipants and, thus, be included inperformance calculations. For WIOAyouth, reportable individuals who aredetermined eligible, receive anassessment, and receive a programelement (a staff-assisted service) wouldbe considered participants and, thus, beincluded in performance calculations.For the AEFLA program, reportableindividuals who have been determinedeligible and who have completed atleast 12 contact hours in an adulteducation and literacy activity underAEFLA would be consideredparticipants and, thus, be included inperformance calculations. For theVocational Rehabilitation program,reportable individuals who have beendetermined eligible for services andwho have an approved and signedIndividualized Plan for Employment(IPE) that outlines the services that theindividual will receive would beconsidered participants and, thus, beincluded in performance calculations.
Proposed § 677.150(b) defines‘‘reportable individual’’ as an individualwho meets specific core program criteriafor reporting such as the provision ofidentifying information or a level ofservice receipt that is below the staffassistedlevel, which will be furtherexplained in guidance issued by DOLand ED. This approach would allow forcounting self-service system utilizationor those who received onlyinformational services/activities as wellas other services that may occur prior toan individual meeting all of theestablished benchmarks forparticipation.
These definitions are critical fordetermining who is subject toperformance calculations. Allindividuals receiving staff-assistedservices through WIOA workforcesystem core programs would be reportedunder a single count of programparticipants and would be subject toperformance calculations. It isimportant to note that this differs fromETA’s current approach for theEmployment Services’ under WIAreporting whereby self-serviceindividuals are included in performancecalculations. In contrast, under theseproposed regulations all self-service andinformation-only individuals would besubjected to reportable counts and otherassociated information, but notperformance calculations for theprimary indicators of performance. Thisproposed approach also would addressthe current inconsistency in reportingbased on various co-enrollmentstrategies.
The Departments are seeking feedbackregarding this proposed approach,specifically for the WIOA title I and IIIprograms, on the appropriate point ofreceipt of staff-assisted services, whichhas not been a commonly defined pointunder WIA. A stronger delineation ofthat measurement point, which wouldbe the same for the Wagner-PeyserEmployment Services, WIOA adults,and WIOA dislocated workers, wouldenhance comparability across States.
Proposed § 677.150(c) defines theterm ‘‘exit’’ for the purposes of auniform performance accountabilitysystem for the core programs underWIOA, as well as applicable non-coreprograms as established throughregulation or guidance. Several of theprimary indicators of performance forperformance accountability requiremeasuring participants’ progress afterthey have exited from the program. Oneconsistent definition of exit wouldfacilitate this calculation and will allowthe Departments to make meaningfulcomparisons across the States. For thecore programs, excluding VocationalRehabilitation, the Departments proposedefining ‘‘exit’’ as the last date ofservice. The last date of service meansthe individual has not received anyservices for 90 days and there are nofuture services planned. For the purposeof this definition, ‘‘service’’ does notinclude self-service, information-onlyactivities, or follow-up services.Therefore, in order to determinewhether or not an individual has exited,States will retroactively determine if 90days have passed with no furtherservice and no further servicesscheduled.
The proposed definition of ‘‘exit’’ forthe Vocational Rehabilitation program issimilar in that it marks the point atwhich the individual no longer isengaged with the program and there isno ongoing relationship between theindividual and the program. However,the proposed definition takes intoaccount specific programmaticrequirements. Under the VocationalRehabilitation program, an individualwould be determined to have exited theprogram on the date the individual’scase is closed in accordance withVocational Rehabilitation programrequirements. Even with thisprogrammatic distinction, thecalculations would be essentially thesame as with the other core programsbecause in all instances the ‘‘exit’’ countwould capture all individuals who areno longer active participants in any ofthe core programs. In addition, theDepartments exclude from thedefinition of ‘‘exit,’’ for purposes of theVocational Rehabilitation program,those individuals who have achieved asupported employment outcome at asubminimum wage. This proposedprovision is necessary to implementWIOA’s heightened emphasis oncompetitive integrated employment.
The Departments considered variousapproaches to defining ‘‘exit’’ across theprograms. The proposed definitionintroduces common language that isbroad enough to apply to all of the coreprograms, but also accommodatesstatutory requirements specific to theVocational Rehabilitation program asimplemented in 34 CFR 361.43 and361.56.
The Departments seek comments onwhether an individual’s continued useof self-service offerings should extendthe individual’s exit date, or if aparticipant should be considered ashaving exited after the final staffassistedservice. The self-servicecomponent is limited to WIOA title Iprograms and the Wagner-PeyserEmployment Services.
WIOA sec. 116(d)(2)(I) requires States to report on the number of participants who are enrolled in more than one WIOA core program. Therefore, the Departments are also considering the value of a cross-program definition of exit, sometimes called a common exit, that is based upon the last staff-assisted service from all core programs rather than a program exit. The current proposed definition of ‘‘exit’’ is program specific so if an individual was receiving services from more than one program, that individual could have multiple ‘‘exits.’’ The current proposed definition would allow programs to capture all exit-based participant outcomes in a reporting period regardless of whether the participant continued to receive services from other core programs. The Departments have considered a common exit-based definition that requires an individual to have completed all programs in order to officially exit from the system. Such a definition would emphasize the importance of an individual receiving and completing all partner program services necessary to ensure a successful attachment to the labor market. It is, however, largely dependent on the ability of States to exchange data effectively and efficiently across State agencies in order to determine outcomes for each of the programs. TheDepartments are seeking comments onthe costs and benefits of taking aprogram-exit approach or a commonexit approach in defining ‘‘exit.’’
2. Subpart A—State Indicators of Performance for Core Programs
§ 677.155 What are the primaryindicators of performance under theWorkforce Innovation and OpportunityAct?
Proposed § 677.155 identifies theprimary indicators of performance thatStates must include in their Unified orCombined State Plans. The primaryindicators are applied in numerousplaces across all of the WIOA proposedregulations. Though the indicators mayappear under other components of theregulations the indicators are alignedand the same and do not vary across theregulations. The Departments haveconsidered a variety of approaches todefine the primary indicators ofperformance, which will be applied toeach of the core programs outlined insec. 116(b)(3)(A)(ii) of WIOA.Specifically, these indicators will applyto the core programs administered byED’s Office of Career, Technical, andAdult Education, ED’s RehabilitationServices Administration, and DOL’sETA. WIOA presents new opportunitiesfor system alignment throughperformance accountability. The ED andDOL envision a performance systemwhereby all programs’ primaryperformance metrics share a commonlanguage that supports comparabilityand facilitates enhanced consumerchoice and better programmaticdecision-making.
Proposed § 677.155(a)(1) identifies thesix primary indicators that will beapplied to the core programs identifiedin sec. 116(b)(3)(A)(ii) of WIOA. TheDOL is also planning to leverage theseindicators to streamline reporting forother DOL programs, such as the JVSGprogram, and other discretionary grantprograms. To that end, the Departmentsinvite comments specific to this issue.
Proposed § 677.155(a)(1)(i)implements the first statutoryperformance indicator in sec.116(b)(2)(A)(i)(I) of WIOA and requiresStates to report on the percentage of participants in unsubsidized employment in the second quarter after exit from the program. This statutorylanguage requires States to measure theemployment rate of participants in thesecond quarter after exit from theprogram. In contrast, WIA’s firstindicator of performance required Statesto report on an ‘‘entered employmentrate.’’ The WIA indicator measuredindividuals who were unemployed atthe time of entry into the program andafter receiving services, obtainedemployment, thus allowing theDepartments to evaluate whether theWIA services were effective in helpingunemployed individuals obtainemployment. The proposed WIOAindicator is different from WIA’s‘‘entered employment rate’’ indicator intwo ways: (1) The time period formeasurement in WIOA is the secondquarter after exit instead of the firstquarter; and (2) the statutory languageunder WIOA does not specify that theindicator is to measure entry intoemployment. The Departments plan tocalculate both an ‘‘employment rate’’ forall participants in the programregardless of employment status atprogram entry and an ‘‘enteredemployment rate’’ for participants whowere unemployed at the time ofprogram entry. The Departments seekpublic comment on whether and how tocollect information on the quality ofemployment and how WIOA’s programshelp employed and underemployedindividuals find new or better jobs.
Proposed § 677.155(a)(1)(ii)implements WIOA’s second statutoryprimary indicator of performance and issimilar to the first, except that the timeperiod for measurement is the fourthquarter after exit. This statutorylanguage requires States to measure theemployment rate of participants in the fourth quarter after exit from the program without regard to whether those participants were employed in the second quarter after exit from the program. Under WIA, this indicator is aretention measure that analyzes whetherindividuals who were employed in thefirst quarter after exiting from WIAservices were still employed in thesecond and third quarters. As aretention measure such as the approachunder WIA, this indicator would havecounted participants who wereemployed in the second quarter afterexit and measured of this group, whowere still employed in the fourthquarter after exit from the program. TheDepartments seek comment on theadvantages and disadvantages ofcollecting or reporting the employmentretention rate in addition to theemployer rate.