December 18, 1998

Mr. Raymond Uhalde
Deputy Assistant Secretary for
Employment and Training
U.S. Department of Labor
200 Constitution Avenue
Washington, DC 20210

Dear Mr. Uhalde:

On behalf of the National Association of State Workforce Board Chairs, we are forwarding to you the attached comments on the Workforce Investment Act draft preview regulations and planning guidance. Thank you for the opportunity to comment.

There are several key points that are important to highlight. We believe that Governors must have clearly defined authority to promulgate interpretations and other guidance to state and local agencies and interests involved in the implementation of the workforce development system or the use of services available through the system. This flexibility is critical to designing a system that is truly responsive to customer needs in each state.

In addition, it is important to recognize that the Workforce Investment Act provides an opportunity to build a new system. It will take time to develop the new customer information and performance management mechanisms and universal services required by this new system. The Department should, to the maximum extent possible, allow for an extended period of transition to the new WIA system.

Finally, we encourage the Department to use restraint in issuing regulations for implementing WIA. The two hundred and fifty plus pages in the preview draft of regulations are daunting. We believe that the regulations and policy directives issued by the Department should support the flexibility afforded states and localities by WIA. The draft preview regulations move in the directions of being prescriptive rather than supportive.

Thank you for the opportunity to review and comment on the draft planning guidance and draft preview regulations. We see this as a process that will begin to unfold with the issuance of interim final regulations in early February. We look forward to the opportunity to provide further input. The state workforce board chairs are committed to working with the Department to ensure a successful implementation of the Workforce Investment Act.

If you have any questions regarding the attached comments, please contact us directly by calling Betty Jane Narver, the chair of the Association and the Washington state board on (206) 543-0190 or Alice Galvin, chair of the WIA transition task force and the Alaska state board on (907) 564-1242, or contact Martin Simon, the Association's staff director, at the National Governors' Association on (202) 624-5345.

We look forward to working with you.

Sincerely,

S/

Betty Jane Narver
Association Chair

Alice Galvin
WIA Transition Task Force Chair

____________________________________________________________________________________

 

Betty Jane Narver, Chair

State of Washington Workforce Training & Education Coordinating Board, Box 353060, Seattle, WA,

Phone (206) 543-0190, FAX (206) 616-5769 – Association Mailing Address: 444 North Capitol Street, NW, Suite 267, Washington, DC 20001, Phone (202) 624-5345, FAX (202) 624-5313

____________________________________________________________________________________

(Attachment)

 

National Association of State Workforce Board Chairs

Comments on the WIA Preview Draft Regulations and Draft Planning Guidance

 

December 18, 1998

These comments are divided into two sections covering the preview regulations and the draft planning guidance. The preview draft regulations section is categorized into five areas: general comments, transition, governance, performance accountability, and service delivery.

 

Comments on the WIA Preview Regulations

Transition

Transition Period. The Administration should, to the maximum extent possible, treat the first full year of implementation for all states (i.e., until June 30, 2001) as a period of transition to the new system. One important reason is that it will take many months to install technology needed for regular collection of performance and management data on individuals in many programs, such as adult and vocational education, housing, and food stamps, as well as Title I of WIA (given variations under state laws in current individual data for employment and training programs, such as UI wage records).

Final Regulations. The interim final rule to be issued in early February will be the first chance most will have to review federal regulatory decisions. Therefore, the Secretary should make it clear that those rules are, in fact, temporary and highly tentative and should invite extensive comment in a highly interactive process leading up to issuance of final regulations by December 31, 1999, as required by the Act.

 

Governance

Grandfathering State Councils. USDOL should consult with each state before proposing a new federal rule that any change whatsoever in the structure of an existing state board would disqualify it and require a state to comply in every respect with the state or local board described in section 111(b) of the Act. If a Governor determines that adding other representatives improves the effectiveness of the state board and serves the purposes of the state system, the Governor should have the flexibility to take such action without reconstituting the entire board. Many current state boards are based on state law or executive orders having the force of law. No federal administrative rule without explicit support in federal statute should be expected to pre-empt state law.

This restrictive interpretation inhibits the development of partnerships at the state level and at the local level, when significant partnerships need to be reflected on the state board. Systems, especially while in development, need to be fluid and responsive. The requirements to remain static (or start over) will either inhibit the building of the system or exclude stakeholders from participating in the governance of the system.

Representation on State and Local Boards. It should be understood that, in some circumstances, an individual may be called upon to represent more than one of the interests required to have membership on a state or local board (e.g., business and veteran, adult and vocational education) in order to maintain boards of manageable size.

The Act already requires boards that are too large, but requiring two representatives on local boards from some entities goes beyond the Act and should not be in the regulations but left to Governors to decide. Local areas must balance the requirement for a large board with the necessity to be effective. USDOL should support this need for balance or risk having ineffective boards.

In addition, states and local boards should be permitted to deny board membership to workforce development programs that refuse to participate, invest, and cooperate in the one-stop centers systems.

State Plans. The Act is very specific about what must be included in the state plan. It does not give the Secretary of Labor authority to issue planning guidelines that add requirements to the state plan in addition to those under WIA. A plan submitted under the requirements of Section 112 is considered to be approved by the Secretary unless there is written determination that the plan is inconsistent with the provisions of WIA. The draft regulations clearly expand the requirements to include provisions that are not included under Section 112 of the Act.

It seems unreasonably burdensome to require that modifications to the state plan be subject to the same public review and comment requirements applicable to the original plan. USDOL should distinguish between major and minor modifications of the Plan.

In addition, provisions describing what must be included in the state plan are scattered throughout the draft document, it would be useful if they were covered in one place in the document and then referenced, if necessary, in other parts of the document.

 

Performance Accountability

Since instructions or guidance on performance accountability are still under development, it seems premature to suggest what may appear in instructions. This detail should be provided in transition regulations, final administrative regulations and through USDOL technical assistance on establishing and negotiating performance measures.

Provided below are issues to consider as the Department of Labor develops administrative rules and/or guidance on performance accountability.

Negotiating Performance Goals. The timing of governors’ negotiation on performance with the Secretary is highly critical. State performance measures need to be established early for both the state plan and the local plans so they can be used as a basis for expected deliverables in procurement of services.

The regulations must be realistic about the potential of obtaining consistent and reliable wage record information for performance measurement, eligibility determination, and service provider certification. This goal is unlikely to be attainable within the next two years. Inconsistencies that must be overcome include major differences in definitions of wages in state unemployment insurance law, state confidentiality and privacy statutes, and state wage record collection systems, as well as current uncertainties about availability of an interstate exchange of wage records, including access to earnings information in "new-hires" databases.

State success in getting results should be determined based on performance "to plan" and not to a federally prescribed national average or goal that could readily lead to dubious 50-state rankings.

Additional Performance Goals. Required state performance measures should be only those explicated in the Act. Current conversations around performance accountability under WIA Title I, GPRA, Employment Service, and unemployment insurance suggest a tendency toward specifying too many performance measures too quickly—without ample consideration of the need to align them across a dozen or more programs specified in the Act.

The regulations should allow, but not demand, additional measures, e.g., measures picked by the department(s) for GPRA plans and reports, measures of "self sufficiency," or measures of concentration on low-income or welfare recipients. Additional or nationally uniform measures will not allow the flexibility that is necessary for obtaining full cooperation and integration of related programs, especially education, at state and local levels.

Incentive Grants to States. While states are required to award incentive grants to high-performing local areas, the Act leaves the issue of federal incentive grants to states to be decided later by the Congress in the appropriation process. The department should await actual appropriation of incentive grant funds before implementing this program, rather than imposing identical national measures in anticipation of incentive grants that may not materialize or be large enough to influence system performance.

USDOL should explore avenues to either postpone incentives for States until both Title II Adult Education and Literacy programs and Carl D. Perkins programs have data and reporting systems capable of providing the necessary information or allows programs under Title I of WIA to initially apply for incentives grants on their own.

Use of Collected Data. The Workforce Investment Act provides that in carrying out the requirements of the Act, the state should comply with Section 444 of the General Education Provisions Act as amended by the Family Educational Rights and Privacy Act. This will restrict the measurement of certain performance indicators required by WIA, such as attainment of secondary school diplomas and placement and retention in postsecondary education or advanced training. In developing the WIA regulations, the USDOL should include an intent statement to the effect that the collection and release of data from student records used in measuring performance of programs and services under WIA is for the purpose of improving programs and instruction related to those programs.

Continuous Improvement. Continuous improvement should be viewed as system-building activity, not a compliance activity. In the private sector, continuous improvement has evolved as a methodology (involving measurements) for improving the process by which services are designed and delivered. As such, continuous improvement will require data that are unique to the particular system component being improved in a particular state or locality. No nationally uniform data—or method of national diagnosis—should be presumed or required.

In addition, an emerging national consensus should be fostered around the principle that customer satisfaction is essentially a form of continuous improvement–that is, process improvement in an effort to produce better results.

Additional Reporting Items. The WIA already requires reporting systems to collect and submit more types of information than necessary to document program performance and achievements. No additional reporting items should be mandated under administrative rules. If additional information is needed from time to time, the federal agency(ies) should fund studies to collect the requested special information, thus fulfilling one of their important roles in the new system.

Another concern is that federal reporting requirements will be driven by technology considerations, rather than by policy-directed need for information to satisfy explicit requirements of the Act. Reporting requirements will be vigorously resisted unless they specify their origins in statute, their policy purpose, how the department intends to use the data, and to what extent the requirement will level the playing field across states, programs, and services.

In defining reporting items, the department should consider the degree of difficulty and expense anticipated in verifying the data element; for the reporting system as a whole, the department should be mindful of the total anticipated expense of maintaining the envisioned data systems and infrastructure. For example, both funding and time must be provided to develop currently limited or nonexistent processes for fully documenting the characteristics, participation, and results for individual clients in all of the perhaps 20 programs expected to provide services through the one-stops.

Enrollment. By stating on page 88 of the draft regulations that participants need not be enrolled if they receive services that are low-cost and either self-service or primarily informational raises a lot of issues. It is not clear which services require enrollment and which are universally available. What is the relationship between enrollment and negotiated levels of performance? If low-cost services are not to be counted as part of the performance there may be little incentive for states to continue their investment in technology as a service delivery tool.

Waivers of Federal Law. It should be understood that provisions of the Act relating to performance accountability may be waived by the Secretary (upon application by a state) or by the Governor (upon application by a local area in a state that gains "workflex" authority). The statute does not include performance accountability among provisions which are specifically excepted from waiver.

 

Service Delivery System

Flexibility. A general comment on all the questions about whether or not specific items should be further defined is to default to not defining them. States should have the flexibility to design systems that satisfy the needs of customers while meeting the intent of the Act. These systems are likely to be unique in each state. In most of these areas, if states have questions, they should be able to turn to the Department of Labor for technical assistance.

Scope of the System. The draft regulations are confusing when describing the "workforce investment system" and the "one-stop delivery system". It seems that the "workforce development system" should be used in the broader context with the "one-stop system" as a method of service delivery under the WIA.

One-Stop Partners. The answer to the question on who are the one-stop partners (on page 19) does not provide any further clarification beyond what is already stated in the Act. It would be useful to know what programs are authorized under state Unemployment Insurance laws (in accordance with applicable federal law), and what employment and training activities are carried out under the Community Services Block Grant and the Department of Housing and Urban Development. Also, since Unemployment Insurance is not required to be administered through the one-stop system, USDOL should assist states in defining the relationship between UI and the one-stop system.

Determining Eligibility for Training Services. The discussion of this topic on page 37 is confusing particularly in regard to the role of the "one-stop partners" in determining eligibility. It is not clear how this would work with multiple partners and who makes decisions related to resource allocations if the one-stop partners and one-stop operators are both making eligibility determinations. Rather then trying to clarify this issue by adding to the language in the regulations, it would be more helpful to recognize that these type of service system design questions should be left up to the states and localities to work out cooperatively.

Eligible Training Providers. States should be allowed to establish methods of ensuring the reliability and effectiveness of training providers in ways that avoid such administrative burdens as requiring each specific class of instruction be certified. Details of required performance reports on providers should be left for states and their local partners to determine in local areas.

The draft regulations state that the Governor is required to designate a state agency for maintaining a single list of eligible providers. It should be clear that this designation is included in the state plan along with the criteria that the Governor used to make this designation. Since this list is used to provide consumer information through the one-stop system, it seems that the cost of maintaining the list should be considered a program cost and would be covered under the Governor's 15% reserve funds.

 

Comments on Draft Planning Guidance

General Comments:

The extraordinary amount of effort devoted to planning on the part of the USDOL WIA Implementation Task Force is appreciated. This has resulted in moving the concept of planning from a compliance exercise to a strategic planning process. This is evident in the draft planning guidelines with many of the compliance items moved to the assurances section. The emphasis on strategic planning needs to be strengthened in the planning guidance.

A real strategic plan should state where the state would like to go (vision), where it is now (current system and needs), and the strategies and allocation of resources to achieve the vision. This kind of plan, especially when the partners can see themselves in it and the part they play, becomes a living document with several purposes, only one of which is compliance. The compliance elements in such a plan should be limited to accountability for results.

Strategic elements should be paramount and emphasized; compliance elements, while they need to be present, should be minimized or appended to the plan as assurances or in a check-off format as certifications. The extent to which compliance items require the description of systems, they should be handled as certifications or assurances. For example, instead of providing copies of policies, it should be sufficient for a state to certify that is has such policies and that they are on file. This approach will help ensure that the plan is real, and a living, useful document.

Specific Comments:

Readiness Criteria. The state readiness criteria in the draft planning guidance are not strategic and should be separate from the plan, preferably as assurances.

Leadership. Some comments on governance may be appropriate, but lists of board members, processes by which they were selected, etc. are not relevant to the strategic nature of the plan.

Other Elements. Conflict of interest, criteria for the appointment of local boards, allocation formulas, youth eligibility, state policies and requirements, all are strictly compliance items and should be relegated to assurances or appended items.

Services. A brief description of current one-stops is appropriate to set the context, but lists of types of services are only needed to assure compliance.

System Infrastructure. While it is important for USDOL to know these items, such as what the local areas are, and the criteria for the selection of service providers, but they are not strategic and should not be a part of a strategic plan. In addition, how designation of local areas occurred, or listing the designation recommendations, should be a certification only, in check-off format.

Assessment of Strengths and Improvement Opportunities. This is an excellent section that provides analysis important to a strategic plan. It should not be side-by-side in the same document with the compliance information.

Strategies for Improvement. This could be a very important and strategic section, moving from the assessment of the current workforce system to improvements that are planned over the five-year period. However, most of the items requested are not requests for planned improvements but merely descriptions of what services will be provided to required target groups and how. This is not a strategic approach and should be part of the certifications appended as assurances. This section needs a truly strategic planning approach.

Plan Modifications. The planning guidance (and regulations) should not require Governors to submit modifications to state plans due solely to changes in federal policy. The plan is intended to be a strategic plan tied to the conditions and needs of the state and its local communities. Governors should have the authority to modify their plans if federal policy changes significantly effect the strategies in the state plan. Federally mandated plan modifications should be tied to changes required by law or court order.

Performance Management. This section is generally good. Performance and performance improvement must be a part of a strategic plan. However, descriptions of data collection systems belong in the certification section.

Option 2: Transition Plan. While many states may be tempted to choose this option because it allows them to phase in implementation of WIA, the complexity as it is currently presented is likely to serve as a major disincentive.

Unified Plans. Unified plans under WIA should not be different from WIA strategic plans. The participating programs and funding streams should be identified in the strategic plan along with their current contributions to the system, planned improvements, and targeting of resources. Compliance items relating to specific funding streams should be added to the assurances section.

Concluding Comments:

The planning guidance and instructions are for the strategic five-year state plan, therefore it is important to recognize that the Governor, working through the state workforce board, is responsible for conducting the cooperative planning process leading to the development of the plan and is responsible for submitting the plan to the Secretary of Labor. The draft planning guidelines pay minimal attention to the importance of the Governor's role.

Other key players in the implementation of the Workforce Investment Act are members of the business community. It is striking what little attention the planning guidelines give to their role. Employers have a pivotal role to play in developing state and local strategic plans as the majority members of state and local boards, and as key customers of the workforce development system, they must inform the system about the needs of employers. The planning guidelines should recognize and support the role of the business community.

To achieve the goals envisioned by the Workforce Investment Act requires cooperation across agencies and programs at all levels of the system. This cooperation must carry through all phases of implementation from state and local planning to services delivery at the one-stop centers. It is critical that federal agencies demonstrate this cooperation by working together to eliminate barriers that prevent agencies at the state and local levels from fully cooperating to truly change the existing workforce development system into a high performance system. Without this cooperation the potential of powerful tools like the unified plan, state and local boards, and one-stop centers will not be realized. The planning guidelines and regulations need to support cross-agency and program cooperation and ensure that states and localities have the flexibility and authority to bring the key stakeholders to the table.

The WIA provides states (and localities) a vitally important new authority to negotiate performance levels and indicators that reflect the economic and social situations and needs of their local communities. The planning guidelines and regulations need to recognize that negotiation is a give and take process and not a one-time event that can be prescribed. Ideally the process begins with the needs of local communities which are then reflected in the state-local negotiations and finally in the state-federal negotiations. Therefore, it is important to know as early as possible how USDOL sees this process unfolding.