Mr. Fernando Lecuona, III
Deputy Commissioner of Labor
Nebraska Department of Labor
P.O. Box 94600
550 South 16th Street
Lincoln, Nebraska 68509-4600
Dear Mr. Lecuona:
I am pleased to offer Nebraska JTPA waiver approvals in response to the State's April
23, 1997 request. This could not have been done without the vision, strategy and planning
that was produced by the local, State, and Federal (national and regional staff) partnership, of
which it has been our pleasure to be a part. I thank you for your and your staff's hard work
and patience.
The State's request was considered under the special appropriations act provision
granting the Secretary of Labor authority to waive certain requirements of Titles I-III of JTPA,
and Sections 8-10 of the Wagner-Peyser Act. This authority was granted to the Secretary in
the Department of Labor's (DOL) Appropriation Act for 1997 (Pub. L. 104-208, section
101(e)).
This is a one-year authority and applies only to JTPA funds available for expenditure
during the period July 1, 1997 through June 30, 1998, and, therefore, could affect the JTPA
Grant Agreements for Program Year (PY) 1997, 1996 and 1995 funds, depending on fund
availability during the waiver period. Enclosed you will find an overview and our disposition
with regard to each of your requests, as well as copies of our formal response to the Governor.
Enclosed also is a grant modification (3 copies) that will require signature by the Governor or
the State's JTPA signatory official. Please check off the applicable JTPA grant agreements
(PY 97, 96, 95) that the statutory waiver modification will affect. We ask that the documents
be signed by the appropriate official and returned to the Grant Officer at the address indicated
below:
Mr. James C. De Luca
U.S. Department of Labor - ETA
Office of Grants and Contract
Management - DAA
200 Constitution Avenue, N.W,
Room - South 4203
Washington, D.C. 20210
Upon execution by the appropriate USDOL grant officer, we will return an executed
copy for the State's official files. This modification is effective July 1, 1997.
We applaud Nebraska's efforts to focus on a workforce vision and the development of a
strategy to meet that vision. Waivers, of course, are only a small part of this strategy. We
will continue to work with Nebraska to reach these goals. We expect that these reforms will
continue to reflect the Department of Labor's guiding principles: individual opportunity and
customer choice; leaner government; greater accountability; State and local flexibility; and
strong private sector roles.
This is a living document. As we continue our partnership be sure to let us know if additional
waivers or other action would be beneficial.
Sincerely,
William M. Hood
Regional Administrator
Enclosures
OVERVIEW
The JTPA Grant Agreement between the Governor and the Department will be
modified upon the Governor (or his designee) signing the attached Modification. The granted
waivers are authorized for the period of Program Year 1997. In exchange for these waivers
Washington is expected to meet the agreed upon performance improvements. Below is a
discussion, including the disposition, of all of the State's waiver requests.
Requests to waive program design components were honored except in the case where
the request conflicted with the Secretary's statutory waiver authority, the Department's guiding
principles for waivers and the One-Stop Career Centers and School-to-Work Systems
principles. Administrative waivers were granted in such a manner as to maintain fiscal
responsibility and accountability.
These waivers are based upon the Governor's request, meetings and discussions among
staff, and the Department's familiarity with the program in Nebraska. They do not necessarily
constitute an endorsement of the examples in Nebraska's waiver request. In several instances,
the Department would recommend against the interventions proposed. For example, most
research would caution against general use of stand-alone work experience, job search or on-the job training interventions, particularly for youth without a high school diploma or its
equivalent. The Department continues to strongly encourage educational components for
youth participants.
WAIVERS
A. As requested, the Secretary waives the JTPA procurement requirements at §164(a)(3)
of the Act and the implementing regulations at 20 CFR 627.420(a)(1), (2), (3), and (4); (b);
(d)(1); (e)(1), (2), (3), and (5), (g) and (h). The Governor agrees to use State and local
procurement procedures and abide by the procurement provisions included in the Office of
Management and Budget (OMB) Circular A-102, as codified in the DOL regulations at 29
CFR 97.36. References elsewhere in JTPA to § 164(a)(3) will be understood to refer to State
and local procurement provisions. The Circular requires the State to follow the same policies
and procedures it uses for procurements using non-Federal funds when procuring property and
services under a grant.
Section 627.420 of the JTPA regulations includes rules implementing statutory
provisions other than JTPA § 164(a)(3). As a result, the waiver of this section is not all
encompassing. Section 627.420 subsections which are not being waived follow (the sections
of JTPA which they implement, where applicable, are listed in brackets): (a)(5) [§141(h)],
(a)(6) [§107(a)], (c); (d)(2); (e)(4), (f) [§163], (i) [§144], and (j) [§107(e)(2)].
Subsection 627.420(c) deals with conflict of interest. Even though OMB Circular A-102 also has a section that deals with conflict of interest, it is a generic requirement.
Subsection 627.420(c) was written specifically to cover the unique relationships that JTPA
created with the formation of Private Industry Councils. Therefore, this subsection is not
being waived.
Subsection 627.420(d)(2) provides the State and its SDAs/SSGs with pass through
authority to any unit of State or local government. This requirement is being retained for the
State since the Circular does not provide this authority.
Subsection 627.420(e)(4) is based on the financial requirements contained in the Act
and requires that costs be charged according to the allowable cost provisions at 20 CFR
627.435.
Although JTPA § 164(a)(3)(I) has been waived, the requirements contained in 20 CFR
627.450, Program Income, still apply. The section being waived requires that procurement
transactions between units of State or local government, SDAs/SSGs, et. al., be conducted on
a cost reimbursement basis. The Program Income section of the regulations, in summary,
requires that program income earned be used for purposes of the program.
Although the JTPA procurement requirements, as cited above, are being waived, this
does not relieve the State from awarding JTPA monies through competitive processes.
Competition has a positive impact on the services provided with JTPA funds by leading to the
selection of service providers with the capabilities to provide the services and by resulting in
competitive pricing for the purchased services.
B. As requested, the Secretary waives JTPA § 108(b)(1), (4) and (c); the 15%
administration cost limitations under JTPA §§ 253(a)(3) and 315(a), (b), and (c) and 20 CFR
627.445(a), (b)(3), and (d) and 631.14(a), (b), (c), (d), and (g), eliminating all cost limitations
for titles II and III [except for national reserve account (NRA) grants]; and will apply JTPA §
108(b)(2) and (3); 20 CFR 627.440(c) and (d) and 631.13(a)(1) to reduce the number of cost
categories to two: Administration and Program Costs. The costs of Administration shall be
those defined at 20 CFR 627.440(d)(5) for title II and 631.13(f) for title III. Program Costs
will consist of all other costs including those defined at 20 CFR 627.440(d)(1), (2), (3), and
(4) for title II and at 631.13(c), (d), and (e) for title III. The costs of Rapid Response
activities identified at JTPA § 314(b) and 20 CFR 631.13(b) shall continue to be separately
reported. Reporting instructions for the two cost category reporting method have been
developed and are attached for use by the State.
C. As requested, the Secretary will apply the definition of "family income" in 20 CFR
626.5 such that ". . . such income shall also exclude Social Security Disability Income for an
individual with a disability,. . . ." This administrative regulatory waiver is being granted
under the provisions of 20 CFR 627.201 for a period of four years from the effective date of
this Grant Modification.
D. As requested, the Secretary waives the prohibition on stand-alone work experience, job
search assistance, job search skills training, and job club, for both youth and adults, in
instances when an individual service strategy substantiates its use as appropriate, by waiving
JTPA § 204(c)(2)(B)(ii) and 20 CFR 628.535(b)(2) and (c)(1)(ii) and applying JTPA §
264(d)(3)(A) and (B) as if they read ". . . shall be accompanied by . . . additional services . .
. unless the individual service strategy demonstrates such additional services are not
warranted." Additionally, the title III prohibition on work experience, where such strategy is
supported by an individual assessment, at 20 CFR 627.245(e) and the combination
requirements at 20 CFR 627.245(d) and 628.804(e) and (f) are waived. (JTPA § 204(c)(2)(A)
was not waived as it was unnecessary to do so since (B)(i) already provides an exception.) We
wish to point out to the State that there is research suggesting that work experience provided in
a stand-alone mode is not as effective as when combined with other needed services and that,
as suggested in the request, this authority will be used sparingly.
Also, as requested, the Secretary waives the requirements at JTPA § 264(d)(3)(A) and
20 CFR 628.804(d) and (f) that prohibit pre-employment and work maturity skills training as a
stand-alone activity in cases where the objective assessment and individual service strategy
indicate it is the appropriate intervention. We note that the State has neither asked for nor
received a waiver of the definition of the Youth Employability Enhancement performance
standard, which requires as one of five options that two out of three youth employment
competencies (pre-employment/work maturity, basic skills, and occupational skills) be
obtained. (A waiver of 20 CFR 628.520(e) is unnecessary since this requirement applies only
if the assessment indicates that a service is needed.)
E. For title II and III, current authority permits participants to continue to receive services
following placement so long as participants have not been terminated. Instead of terminating
at placement, termination occurs at the completion of planned services. ETA encourages such
a policy and is willing to work with the State to develop reporting procedures to take credit for
job placements occurring prior to termination.
Nevertheless, as requested, the Secretary waives the requirements at JTPA § 314(c)(15)
and will apply both JTPA § 204(c)(4) and 20 CFR 627.310(e) to title III to enable title III
participants to receive post-termination services, except for financial assistance and training,
for up to one year consistent with title II. The provision within 20 CFR 627.310(e) which
prohibits the use of financial assistance as a post-termination service is not waived. Therefore,
needs-based and needs-related payments are not post-termination options under this waiver for
both title II and III.
F. The Secretary waives the youth OJT wage requirement at JTPA § 264(d)(3)(C)(i)(I)
and the related regulations at 20 CFR 628.804(j)(1)(i) and the participation requirement at
JTPA § 264(d)(3)(C)(iii) and the related regulation at 20 CFR 628.804(j)(2), when indicated
as appropriate in the objective assessment and individual service strategy for youth on-the-job
training. The State shall assure that the OJT positions for youth have substantial training
content and that the training time is correctly determined. In addition, the State should issue
policies to assure that youth OJT opportunities reflect positions with career potential and avoid
the introduction of the abuses in developing youth OJT slots in low wage, low skill positions
which precipitated the enactment of the provisions for which this waiver is requested.
G. As requested, the Secretary waives the requirements at JTPA § 141(k) and 20 CFR
627.245(a) that prohibit work experience in the private for-profit sector. This will permit a
work experience strategy in the private for-profit sector for both title II and title III
participants in cases where the objective assessment and individual service strategy indicate it
is the appropriate intervention. The following conditions apply in addition to the preceding
stipulation:
This may be an effective strategy for welfare-to-work (TANF) participants as well as for some
of the disadvantaged population. However, its appropriateness for most eligible dislocated
workers would appear to be extremely limited. Therefore, we recommend the State implement
a State-wide policy which addresses the target populations, including dislocated workers, for
which this strategy will be used. The policy for dislocated workers should contain a
requirement that the worker's individual assessment must justify such a placement over OJT.
H. In consideration of the waivers contained in this grant modification, the State agrees to
a performance improvement of at least five percent at the State and local levels measured at the
conclusion of Program Year 1997 using actual performance in PY 1996 as the baseline for
improvement. Performance improvements will apply to all the Secretary's performance
measures, or to their approved equivalents, for Titles II-A, II-C, and III. States will take into
account the SDAs' performance improvement targets in determining the receipt of Title II
incentive grant awards for PY 1997. In considering whether the State and the SDAs have
attained the agreed upon performance improvement for PY 1997, the Department will apply
the Secretary's Adjustment Models, exclusive of Governor's Adjustments, to the performance
improvement goals. Program Year 1996 and Program Year 1997 performance will be
calculated in the same way for both years.
The Standardized Participant Information Report (SPIR) instructions in Training and
Employment Information Notice 5-93, Change 1 (dated June 23, 1994), as modified by
Training and Employment Information Notice 5-93, Change 2 (dated January 24, 1997),
remain in effect where not specifically waived or modified in this Agreement. Also in effect
unless specifically waived are the Performance Standards Status Summary Report requirements
put forth in Training and Employment Guidance Letter 2-95 (dated August 10, 1995). This
requires Governors to report each SDA's final standard and actual performance for each of the
Secretary's Title II core standards, with required technical assistance plans and reorganization
plans attached.
These waivers are open for modification and the Department will also entertain additional requests for waivers during this program year. These waivers apply to the title II and the title III formula programs. However, ETA will consider requests to apply specific waivers to individual title III Secretary's National Reserve Account (NRA) grants which are active during Program Year 1997. In addition, ETA will consider requests to incorporate specific waivers into new individual NRA grants, as appropriate.