Mr. Garey J. Forster
Secretary
Louisiana Department of Labor
P.O. Box 94094
Baton Rouge, Louisiana 70804-9094
Dear Mr. Forster:
I am pleased to offer JTPA waiver approvals to the State of Louisiana in response to
the State's May 13, 1997, request, which was updated by the State on June 26, 1997. 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 September 30, 1997.
We applaud Louisiana'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 Louisiana 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,
Joseph Juarez
Regional Administrator
Enclosures
OVERVIEW
The applicable JTPA Grant Agreements between the State and the Department will be
modified upon execution of the enclosed Modification. Unless specified otherwise these
waivers are authorized for the period beginning July 1, 1997 and ending June 30, 1998. In
exchange for these waivers the State is expected to meet the agreed upon performance
improvements.
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 Louisiana. They do not necessarily
constitute an endorsement of the examples in the State'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 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.
B. The State's request to waive the 45-day enrollment requirement at 20 CFR 627.235(c)
for tile II-A and II-C has not been granted. Flexibility regarding this requirement has been
incorporated in the regulation for title II-B. In addition, the Department has indicated in
policy guidance to States, when asked, that a full blown eligibility determination is not
required if an individual is not enrolled in the program within 45 days. An update of the
individual's application to indicate that the individual is still eligible (eligibility status has not
changed from original application) is sufficient to meet the regulatory requirement. With the
flexibility available, this is not viewed as a burdensome requirement, and, where there are
extended delays in enrolling an individual into a program, there is a need to ensure that he/she
is still eligible for JTPA services.
C. {LA-003 and 004} 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 at 20 CFR
627.245(e), where such strategy is supported by an individual assessment, and the combination
requirements at 20 CFR 627.245(d) and 628.804(e) and (f) are waived. 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 this authority
should be used sparingly.
D. The Secretary will apply JTPA § 204(b)(2)(J) and (c)(4) and 20 CFR 627.310(e) to title
III to enable title III participants to receive post-termination services, excluding financial
assistance, for up to one year, consistent with title II. Additionally, the Secretary will apply
JTPA §§ 204(b)(2)(J) and (c)(4), 264(c)(2) and (d)(5), 314(c)(15), and 20 CFR 627.310(e) to
authorize training as a post-termination service contingent upon the Governor:
However, 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 titles II and III.
E. As requested, the Secretary will apply the provisions of needs-based payments at JTPA
§ 204(b)(2)(I) and (c)(3) and 20 CFR 627.305(b)(1) to title III participants. However, in
order to preserve the principle that training is most effective if individuals are enrolled in
training early in the adjustment process and pursuant to the eligibility requirement exclusion
contained in the Appropriations Act of 1997, JTPA § 314(e)(1) and 20 CFR 631.20(b)(1) are
not waived, and shall apply to dislocated workers in order to receive needs-based payments as
well as needs-related payments. Therefore, in order to be eligible for needs-related payments
or needs-based payments, a dislocated worker must be enrolled in training by the end of the
13th week of the worker's initial unemployment compensation benefit period (following
qualifying layoff), or if later, the end of the 8th week after an employee is informed that a
short-term layoff will in fact exceed six months. This also means that JTPA § 314(e)(2) and
20 CFR 631.20(c) and (d) are not waived.
The Secretary will, however, consider an alternative to the definition of "enrolled in
training or education" at 20 CFR 631.20(b)(2) to be utilized in extraordinary circumstances if
Louisiana wishes to propose such a policy. Any alternative policy should preserve the
principle that training is most effective if individuals are enrolled in training early in the
adjustment process.
F. The State's request to exclude from title II-A performance standards calculations
individuals enrolled in basic skills activities has not been granted. Under current policy,
individuals whose objective assessment indicates a need for basic skills activities can receive
them under JTPA (or other funding), but they should also be placed in jobs, which is the goal
of the Act. Individuals whose objective does not include employment should not be served in
title II-A. Because the Secretary's core performance standards help ensure that the basic
purposes of the Act are maintained as the focus of JTPA activities, they must be maintained in
a uniform manner throughout the system. Therefore, the method of calculating employment
retention outcomes for title II-A will not be changed, and individuals receiving basic skills
training will not be excluded from those outcomes. We wish to note that under current title II
performance standards policy, the Governor is free to adopt adult competency attainments as
additional State performance standards. We wish also to note that JTPA participants referred
to other agencies for services, such as basic skills training, should still be included in JTPA
performance standards outcomes (see Training and Employment Information Notice (TEIN) 5-93, Change 1, dated June 23, 1994, pp. 20-21, "[Report] those activities partially or
completely funded by non-JTPA sources that were included in the participant's JTPA service
strategy" (emphasis supplied).
G. 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 the development of youth OJT slots in low wage, low skill
positions which precipitated the enactment of the provisions for which this waiver is requested.
H. 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. (A waiver of 20 CFR 628.520(e) is unnecessary
since this requirement applies only if the assessment indicates that a service is needed.
I. As requested, the Secretary waives the requirements in TEIN No. 5-93, Change 1,
dated June 23, 1994, that to obtain the Youth Employability Enhancement outcome for either
"Returned to Full-Time School" or "Remained in School" definitions, the Youth Employment
Competency that is also required is age-specific. The State may allow attainment of any
recognized Youth Employment Competency by any age youth to meet the required Youth
Employment Competency under the "Returned to Full-Time School" or "Remained in School"
definitions for the Youth Employability Enhancement outcome.
However, with respect to the competency specific requirements, the Secretary has not
waived the basic requirements for the Youth Employability Enhancement termination: to meet
the definition of "Attained PIC-Recognized Youth Employment Competencies", the youth's
proficiency in two or more skill areas must be demonstrated. Therefore, attainment of just one
Youth Employment Competency, even if it is through participation in a School-to-Work or
other activity, is not sufficient. However, the Secretary has granted a waiver--and hereby
offers the same to Louisiana--that modified the criteria regarding Youth Employability
Enhancement termination set forth in Training and Employment Guidance Letter (TEGL) No.
4-95, Change 1, "Job Training Partnership Act (JTPA) Title II and Title III Performance
Standards for PY's 1996 and 1997" and in TEIN 5-93, Change 1, "Standardized Program
Information Report Instructions". Provided that 1) the SDA/State demonstrates that the youth
did not need training in all competencies (for example, pretests indicate no need for basic skills
or pre-employment/work maturity or training in one of the two required competencies was
provided by a funding source other than JTPA); and 2) in cases where a youth participant
needs only one additional competency to qualify for the YEEN, training for that competency
must be provided (not necessarily funded) by JTPA, the "Attained PIC-Recognized Youth
Employment Competencies" will be sufficient for the Youth Employability Enhancement
outcome. SPIR reporting requirements will continue, and ETA will issue revised reporting
instructions to accommodate this waiver.
J. The State's request to exclude youth who obtain competencies from the entered
employment rate calculation for title II-C has not been granted, but may not be necessary.
First, we wish to point out that performance standards policy for Program Years 1996 and
1997 requires only that to meet performance standards overall by the Secretary's definition,
four of the six core performance standards be met. Under this policy (see TEG No. 4-95,
Change 1, dated May 3, 1996), it is not required that an SDA meet either youth standard, as
long as all other standards are met. Further, youth who obtain competencies are excluded
from the calculation of the entered employment rate if they also meet the definition of
"Returned to Full-Time School" or "Remained in School". Therefore, those youth for whom it
is appropriate (those in school) are already excluded from the entered employment rate. Under
current policy, out-of-school youths whose objective assessment indicates a need for
competency training can and should receive it under JTPA (whether funded by JTPA or not),
but they also should be placed in education or jobs, which are the goals of title II-C. Out-of-school youth whose objective does not include employment or education should not be served
in title II-C. Because the Secretary's core performance standards help ensure that the basic
purposes of the Act are maintained as the focus of JTPA activities, they will be maintained in a
uniform manner throughout the system. Therefore, the method of calculating the youth
entered employment rate for title II-C will not be changed, and out-of-school youth receiving
training will not be excluded from that outcome.
K. As requested, the Secretary waives the JTPA procurement requirements and the
implementing regulations at §164(a)(3) and 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 consistent with Office of Management and Budget (OMB) Circular A-102, as codified in the DOL regulations at 29 CFR 97.36 (The Common Rule). References
elsewhere in JTPA to § 164(a)(3) will be understood to apply to State and local procurement
provisions. The Circular/Common Rule requires the State to follow the same policies and
procedures it uses for procurements from its 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) of the regulations 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. Section 627.420(c) of the regulations 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.
Section 627.420(e)(4) is based on financial requirements contained in the Act and
requires that costs be charged according to the allowable cost provisions at 20 CFR 627.435.
Although §164(a)(3)(I) has been waived, the requirements contained in §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.
In addition, the State has requested a waiver of JTPA § 107(a) and (e) and suggests that
the primary focus of the procurement process should be collaboration. As indicated below,
waiver of these provisions has not been granted. We believe that collaboration is bringing
various organizations to the table who bring with them more than minimal funding or other
tangible resources to the collaborative effort. Where JTPA, the Employment Service, the
Unemployment Insurance system, the Vocational-Educational system, and others collaborate
and bring monies to the table, these entities (whose legislative mandate is to provide specific
types of services/programs) can provide those legislatively mandated services/programs in an
integrated or cooperative setting. We do not believe that collaboration is bringing various
organizations to the table in order to divide the available JTPA funds among themselves. The
JTPA procurement rules do not preclude the former type of collaborative effort.
We would like to note that §107(a) of the law, which requires the consideration of
demonstrated performance in selecting entities to deliver services, and which calls for giving
proper consideration to community-based organizations (CBOs), is not being waived. In the
case of demonstrated performance, ETA considers this to be an important component in the
selection of service providers. In the case of CBOs, historically they have provided integral
employment and training services. The State is expected to not only take into consideration
the demonstrated performance of entities being considered for funding, but also to include
CBOs in the pool of entities being considered for funding.
Although the JTPA procurement requirements, as cited above, are being waived, this
does not relieve the State from awarding JTPA monies through competitive processes as
required by § 107(e) which is not being waived. Competition has a positive impact on the
services provided with JTPA monies, 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.
L. As requested, the Secretary waives JTPA § 108(b)(1), (4) and (c); the 15%
administration cost limitation under JTPA §§ 253(a)(3) and 315(a), (b) and (c) and 20 CFR
627.445(a), (b)(3) and (d); 631.14(a), (b), (c), (d), (f), and (g), eliminating all cost limitations
for titles II and III [except for title III national reserve account (NRA) grants]; and will apply
JTPA § 108(b)(2) and (3) and 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.
M. As requested, the Secretary shall apply the requirements in TEIN No. 26-96, dated
April 22, 1997, transmitting the "Guide to JTPA Performance Standards for Program Years
1996 and 1997," such that title III performance standards calculations exclude participants
terminating after receiving objective assessment only, consistent with title II. ETA will
provide revised SPIR title III reporting instructions to separately identify those receiving
objective assessment only from those receiving other Basic Readjustment Services.
N. The State's request to waive the limitation on the transfer of funds between titles II-A
and II-C has not been granted. The Secretary does not have authority to increase the amount
of money that may be transferred beyond that already provided in JTPA. Congress
appropriates to DOL a specific amount of funding to be spent on each year-round program,
while the statute gives the states and SDAs limited spending flexibility. If we permit the states
to transfer more than the percentage allowed by JTPA, then that portion of money,
appropriated for a specific purpose (II-C for example), will be improperly expended for other
than that purpose.
Additionally, the Department believes that it is important to maintain services to youth,
including out-of-school youth. As funding for title II-C youth services has decreased in recent
years, the Secretary is not prepared to permit further reduction of services to youth, including
out-of-school youth, by waiving the funds transfer requirement.
O. 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. (A waiver of 20 CFR 628.520(e) is unnecessary
since this requirement applies only if the assessment indicates that a service is needed.)
P. In consideration of the waivers contained in this grant modification, the State agrees to
a performance improvement of four percent (4%) at the State level 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. In order to meet this performance
improvement, the State is expected to require that each SDA/SSG make some improvement in
performance and that those SDAs/SSGs which demonstrate comparatively lower levels of
performance be required to make greater performance improvements. States will take into
account the SDA's performance improvement targets in determining the receipt of title II
incentive grant awards for PY 1997. In considering whether the State has 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 Program Information Report (SPIR) instructions in Training and
Employment Information Notice No. 5-93, Change 1 (dated June 23, 1994), as modified by
Training and Employment Information Notice No. 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 No. 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.