[Federal Register: June 29, 2007 (Volume 72, Number 125)]
[Rules and Regulations]
[Page 35831-35848]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr29jn07-18]
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Part III
Department of Labor
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Employment and Training Administration
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20 CFR Part 641
Senior Community Service Employment Program; Performance
Accountability; Interim Rule
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DEPARTMENT OF LABOR
Employment and Training Administration
20 CFR Part 641
RIN 1205-AB47
Senior Community Service Employment Program; Performance
Accountability
AGENCY: Employment and Training Administration, Labor.
ACTION: Interim final rule; request for comments.
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SUMMARY: The Employment and Training Administration (ETA) of the
Department of Labor (Department) is issuing this Interim Final Rule
establishing new performance accountability measures for the Senior
Community Service Employment Program (SCSEP). New measures are
necessary due to the 2006 Amendments to Title V of the Older Americans
Act. Specifically, this rule amends 20 CFR part 641 Subpart G--
Performance Accountability and corresponding definitions found in
Subpart A--Purpose and Definitions. This notice also solicits public
comment on this Interim Final Rule which the Department will consider
when it issues a Final Rule.
DATES: This rule is effective June 29, 2007. The Department invites
interested persons to submit comments on this interim final rule. To
ensure consideration, comments must be in writing and must be received
on or before August 28, 2007. Comments received after that date will be
considered to the extent possible.
ADDRESSES: You may submit comments, identified by Regulatory
Information Number (RIN) 1205-AB47, by any of the following methods:
Federal e-Rulemaking Portal: http://www.regulations.gov. Follow
the Web site instructions for submitting comments.
Fax: (202) 693-2766.
Mail: Written comments, disk, and CD-Rom submissions may
be mailed to Maria Kniesler Flynn, Administrator, Office of Policy
Development and Research, U.S. Department of Labor, 200 Constitution
Avenue NW., Room N-5641, Washington, DC 20210.
Hand Delivery/Courier: Maria Kniesler Flynn,
Administrator, Office of Policy Development and Research, U.S.
Department of Labor, 200 Constitution Avenue NW., Room N-5641,
Washington, DC 20210.
The Department will post all comments received on
http://www.regulations.gov without making any change to the comments,
including any personal information provided.
The http://www.regulations.gov Web site is the Federal e-rulemaking portal
and all comments posted there are available and accessible to the
public. The Department recommends that commenters not include their
personal information such as Social Security Numbers, personal
addresses, telephone numbers, and e-mail addresses in their comments as
such submitted information will become easily available to the public
via the http://www.regulations.gov Web site. Comments submitted through
http://www.regulations.gov will not include the e-mail address of the
commenter unless the commenter chooses to include that information as
part of their comment. It is the responsibility of the commenter to
safeguard his or her information.
Postal mail delivery in Washington, DC, may be delayed due to
security concerns. Therefore, the Department encourages the public to
submit comments via the Internet as indicated above.
Docket: The Department will make all the comments it receives
available for public inspection during normal business hours at the
above address. If you need assistance to review the comments, the
Department will provide you with appropriate aids such as readers or
print magnifiers. The Department will make copies of the rule
available, upon request, in large print and electronic file on computer
disk. The Department will consider providing the rule in other formats
upon request. To schedule an appointment to review the comments and/or
obtain the rule in an alternate format, contact the office of Maria
Kniesler Flynn at (202) 693-3700 (VOICE) or 1-800-877-8339 TTY/ASCII.
Please note these are not toll-free numbers. You may also contact Ms.
Flynn's office at the address listed above.
FOR FURTHER INFORMATION CONTACT: Adele Gagliardi, Senior Regulatory
Specialist, Employment and Training Administration (ETA), U.S.
Department of Labor, 200 Constitution Avenue, NW., Room N-5641,
Washington, DC 20210; E-mail gagliardi.adele@dol.gov; Telephone (202)
693-3700 (this is not a toll-free number).
Individuals with hearing or speech impairments may access the
telephone number above via TTY by calling the toll-free Federal
Information Relay Service at 1-800-877-8339.
SUPPLEMENTARY INFORMATION:
The preamble to this Interim Final Rule is organized as follows:
I. Background--provides a brief description of the purpose and timing
of the Interim Final Rule.
II. Summary and Explanation of the Interim Final Rule--discusses the
substance of the rule.
III. Administrative Information--sets forth the applicable regulatory
requirements.
I. Background
On October 17, 2006, President Bush signed the Older Americans Act
Amendments of 2006, Pub. L. 109-365 (2006 OAA Amendments). This law
amended the statute authorizing the SCSEP and necessitates changes to
the SCSEP regulations. (The Department will continue to use the name
``Senior Community Service Employment Program'' for this program,
although the law refers to it in various terms.) The purpose of this
Interim Final Rule is to implement changes to the SCSEP performance
measurement system required by the 2006 OAA Amendments. The Department
intends to issue a separate Notice of Proposed Rulemaking, proceeding
under related RIN 1205-AB48, to implement additional changes to the
SCSEP regulations necessitated by the 2006 OAA Amendments.
The SCSEP, authorized by Title V of the Older Americans Act, is the
only federally-sponsored employment and training program targeted
specifically to low-income older individuals who want to enter or re-
enter the workforce. Participants must be 55 years of age or older with
incomes no more than 125 percent of the Federal poverty level. The
program offers participants training at community service employment
assignments in public and non-profit so that they can gain on-the-job
experience. The goals of the program are to move SCSEP participants
into unsubsidized employment so that they can achieve economic self-
sufficiency and to promote useful opportunities in community service
activities. In the 2006 OAA Amendments, Congress expressed its sense of
the benefits of SCSEP, stating, ``placing older individuals in
community service positions strengthens the ability of the individuals
to become self-sufficient, provides much-needed support to
organizations that benefit from increased civic engagement, and
strengthens the communities that are served by such organizations.''
Pub. L. 109-365 Sec. 516(2).\1\
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\1\ Section 501 of the Older Americans Act Amendments of 2006,
Pub. L. 109-365, amended the various provisions of title V of the
Older Americans Act of 1965 (42 U.S.C. 3056 et seq.). For ease of
reference, we will refer to the changes to title V made by the 2006
OAA Amendments by referring to the relevant sections of title V as
those sections were reflected in the Amendments.
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The statute requires the Department to issue definitions of the
indicators of performance through regulation. Section 513(b)(3). The
statute also requires the Department to establish and implement the
performance measures referred to in the statute as ``core measures and
additional indicators of performance'' by July 1, 2007. Section
513(d)(4). The Department has determined that the most effective way to
define the indicators of performance is to do so in conjunction with
the rules that implement such definitions. Defining the performance
measures and implementing them concurrently and in the same document is
also more helpful to the grantees. In addition, given the importance of
the measures in terms of corrective actions and the potential impact
they could have on grantee funding, it is preferable to continue to
describe and define the measures through regulation even though the
statute only requires the Department to implement the definitions
through regulation. Accordingly the Department is both defining and
describing the indicators through this rule.
The Department is unable to promulgate these regulations through
the normal notice and comment rulemaking process because of the July 1,
2007, statutory deadline. Development of this rule necessitated
extensive consultation within the Department, among multiple Employment
and Training Administration offices, the Solicitor's Office and the
Office of the Assistant Secretary for Policy. Activities of this group
included developing a strategy for promulgating the regulation,
addressing policy and programmatic issues and drafting the regulatory
text and explanatory preamble. In addition, the Department was required
to establish and implement the new SCSEP performance measures after
consultation with stakeholders. Pub. L. 109-365 Sec. 513(b)(3).
Therefore, the Department drafted, cleared internally, and published a
notice in the Federal Register (published February 8, 2007, 72 FR 5999)
in order to provide a fair and meaningful opportunity for stakeholders
to respond. The Department received comments during the period
announced in the notice and fully considered these comments, which
informed the Interim Final Rule development. This process is described
more thoroughly below. In addition, the Department needed to examine
potential Paperwork Reduction Act implications of this Interim Final
rule as well as examine the Interim Final Rule under additional laws
and Executive Orders which cover rulemaking. Finally, the Department
needed to obtain all clearances required in rulemaking. Therefore, time
only allowed for the Department to issue an Interim Final Rule. There
is not time to draft, clear, and publish a Notice of Proposed
Rulemaking, receive and respond to comments, and draft, clear, and
publish a Final Rule by the July 1, 2007, deadline. Because Sec.
513(a)(2)(C) of the statute prohibits funding grants until the
Department and the grantee have agreed upon expected levels of
performance, it is adverse to the public interest, and to the interest
of those served under the SCSEP program as well as the grantees who
seek to serve them, if the rule is delayed and a gap in services to
individuals occurs. Therefore, the rule is being published as an
Interim Final Rule so that the performance measures and the supporting
definitions are effective immediately upon publication and without
further delay. This approach will enable the Department and the
grantees to negotiate performance agreements in time for all Program
Year 2007 grants to be funded at the beginning of the Program Year.
Since the statute requires that the Department and each grantee
reach agreement on the expected levels of performance for each of the
core indicators before to the Department may fund the grants that will
be subject to these new rules, starting with Program Year 2007, or July
1, 2007, the Department has made every effort to issue this Interim
Final Rule in as timely a manner as possible and to assist grantees in
meeting their obligations under the new performance requirements. To
further assist grantees to adjust to the changes and to enable grantees
to prepare for and to intelligently negotiate their performance goal
for Program Year 2007, the Department previously issued a Training and
Employment Guidance Letter (TEGL) describing the anticipated changes in
the performance measures.
This Interim Final Rule supersedes the previously issued TEGL. If
the Department determines that the information in this Interim Final
Rule conflicts in a material way with the information previously issued
through the TEGL, and has a material impact on the grantees' negotiated
performance level goals, grantees will be allowed to renegotiate their
performance level goals. The Department will make this determination
and will issue further guidance if necessary.
The Department sought public input on the SCSEP performance
measures during the development of this Interim Final Rule in response
to the statutory requirement that the Department establish and
implement the new SCSEP performance measures after consultation with
stakeholders. Specifically, section 513(a)(1) states that ``[t]he
Secretary shall establish and implement, after consultation with
grantees, sub-grantees and host agencies under this title, States,
older individuals, area agencies on aging and other organizations
serving older individuals, core indicators of performance and
additional indicators of performance for each grantee for projects and
services carried out under this title.'' The statute also instructs the
Department to consult with stakeholders prior to defining the
performance indicators. Pub. L. 109-365 Sec. 513(b)(3). The Department
satisfied these statutory requirements when it solicited public input
on the definitions and implementation of the statutory performance
measures in the Federal Register notice published February 8, 2007, 72
FR 5999.
The February 8, 2007, Federal Register notice specifically
requested input on six topics: (1) The core indicators, (2) the new
one-year retention indicator, (3) customer satisfaction, (4) other
additional indicators including possibly retaining the SCSEP placement
measure, (5) performance outcomes, and (6) other comments related to
SCSEP performance measures. 72 FR 5999 (Feb. 8, 2007). The Department
made extensive efforts to make grantees aware of the notice and inform
them of the timeframe for submitting comments; the Department e-mailed
every grantee and briefed grantees during several all-grantee
conference calls. In response to the notice, the Department received
comments from 28 persons or entities. In addition, the Department
presented a summary of the 2006 OAA Amendments at six regional SCSEP
grantee training conferences in January, February, and March of 2007,
and provided an opportunity for questions and comments.
The Department carefully considered the comments received as we
developed the content of this rule. In the preamble discussion of the
regulatory changes, the Department discusses input we received from
stakeholders. A full summary of the input received on each subject is
available on the SCSEP Web site at http://www.doleta.gov/seniors.
Although the Department solicited stakeholder input through the
February
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8, 2007, notice and carefully considered the concerns raised through
the process, the Department solicits comments on all sections of this
Interim Final Rule. The Department particularly invites comments
addressing any concerns that this Interim Final Rule significantly
compromises the ability of grantees, in areas where a substantial
population of minority individuals reside, to serve their targeted
population of minority older individuals, in accordance with the
requirements of section 514(f) of the 2006 OAA Amendments.
The SCSEP performance measures have evolved over time. Program-
specific measures to monitor the performance of each SCSEP grantee were
first codified in the 2000 Amendments to the OAA. The 2000 OAA
Amendments required the following performance measures:
1. The number of persons served, with particular consideration
given to individuals with greatest economic need, greatest social need,
or poor employment history or prospects, and individuals who are over
the age of 60;
2. Community services provided;
3. Placement into and retention in unsubsidized public or private
employment;
4. Satisfaction of the enrollees, employers, and their host
agencies with their experiences and the services provided; and
5. Any additional indicators of performance that the Secretary
determines to be appropriate to evaluate services and performance.
Pub. L. 106-501 Sec. 513(b).
When the Department implemented the 2000 OAA Amendments, it also
began employing the ``common measures'' in the SCSEP performance
system. The ``common measures'' are a government-wide initiative to
apply uniform accountability measures to federally-funded employment
and training programs, including those administered by the Department
of Labor. Adoption of these common measures helps implement the
President's Management Agenda for budget and performance integration as
well as reduce barriers to integrated service delivery through local
One-Stop Career Centers. To date, ETA has implemented the common
performance measures for the majority of its workforce programs,
including the SCSEP.
The common performance measures are:
1. Entered employment;
2. Retention in employment; and
3. Average earnings.
The value of implementing common performance measures is in the
ability to describe in a similar manner the core purposes of the
workforce system: How many people found jobs? Did they stay employed?
What did they earn? Historically, multiple sets of performance measures
have burdened grantees, as they are required to report performance
outcomes based on varying definitions and methodologies. By minimizing
the different reporting and performance requirements, common
performance measures can facilitate the integration of service
delivery, reduce barriers to cooperation among programs, and enhance
the ability to assess the effectiveness and impact of the workforce
investment system. Current Department guidance on the common measures
is contained in TEGL No. 17-05, issued on February 17, 2006. This TEGL
is available at http://wdr.doleta.gov/directives/corr_doc.cfm?DOCN=2195
.
The Department previously identified ``program efficiency'' as a
common measure for federal job training and employment programs, and
listed program efficiency as a common measure in the last SCSEP Final
Rule. 69 FR 19015, 19064 (April 9, 2004). However, since TEGL No. 17-
05, grantees have not been required to report on program efficiency.
Therefore, this measure is not addressed in this Interim Final Rule.
This Interim Final Rule marks the beginning of the next phase of
the SCSEP performance measures. The 2006 OAA Amendments direct the
SCSEP to track the following performance measures:
Indicators of Performance:
(1) Core Indicators--The core indicators of performance * * * shall
consist of--
(A) Hours (in the aggregate) of community service employment;
(B) Entry into unsubsidized employment;
(C) Retention in unsubsidized employment for six months;
(D) Earnings; and
(E) The number of eligible individuals served, including the number
of participating individuals described in subsection (a)(3)(B)(ii) or
(b)(2) of section 518.
(2) Additional Indicators--The additional indicators of performance
* * * shall consist of--
(A) Retention in unsubsidized employment for 1 year;
(B) Satisfaction of the participants, employers, and their host
agencies with their experiences and the services provided;
(C) Any other indicators of performance that the Secretary
determines to be appropriate to evaluate services and performance.
Pub. L. 109-365 Sec. 513(b).
Note that core indicators B, C, and D are consistent with the
common measures.
All of these indicators are discussed and defined below.
II. Summary and Explanation of the Interim Final Rule
This Interim Final Rule addresses only the SCSEP performance
measures; it amends Subpart G, and related definitions located in
Subpart A, of the SCSEP regulations. As discussed in the background
section, the Department is proceeding separately with this portion of
the regulation because of certain provisions of the 2006 OAA Amendments
which mandate implementation of the new performance indicators during
the Program Year 2007 grant solicitation and award process. The
Department will be proceeding with the normal rulemaking process as it
promulgates regulations addressing the remainder of the changes the
2006 OAA Amendments made to the SCSEP.
As the Department implements these performance measures, it remains
cognizant of Congress' statement that the indicators ``shall be
designed to promote continuous improvement in performance.'' Pub. L.
109-365 Sec. 513(a)(2)(B). The Department remains committed to a
system-wide continuous improvement approach grounded upon proven
quality principles and practices. The Department is implementing these
performance measures with the goal of further aligning the SCSEP with
performance measures used in the rest of the workforce investment
system. Accordingly, the Department purposely defined the entry into
unsubsidized employment, retention in unsubsidized employment for six
months, and earnings performance measures to be consistent with the
common performance measures which are intended for similar, federally-
funded employment and training programs serving adults. Further, the
Department defines the one-year retention indicator to align with the
equivalent indicator used for ETA's Adult and Dislocated Workers
programs.
Subpart A--Purpose and Definitions
What definitions apply to this subpart? (Sec. 641.140)
Section 641.140 of the SCSEP regulations provides definitions for
the SCSEP, including those definitions relevant to the SCSEP
performance measures. This Interim Final Rule, however, includes only
those
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definitions relevant to the performance measures that are new or have
been changed. Definitions relevant to performance measures that have
not changed, as well as SCSEP definitions that are not directly related
to performance measures, remain in the existing rule.
This Interim Final Rule contains new definitions. Several of them
clarify which participants satisfy the core indicator that tracks ``the
number of participating individuals described in subsection
(a)(3)(B)(ii) or (b)(2) of section 518.'' Pub. L. 109-365 Sec.
513(b)(1)(E). The Department received several suggestions for these
definitions; many aspects of that input are mentioned in the
descriptions of each definition, below. Several commenters encouraged
the Department to keep current definitions and/or adopt definitions
that are familiar to the SCSEP, including the definitions from the
SCSEP Data Collection Handbook. Our general approach to defining new
terms in this rule is consistent with these comments; our goal was to
minimize the number of new or potentially duplicative definitions.
Accordingly, we attempted to define terms in a manner consistent with
established definitions used in programs SCSEP grantees are familiar
with, and in many cases those definitions also formed the basis for the
definitions that exist in the Data Collection Handbook. For example,
the definition of veteran comes from the Jobs for Veterans Act, which
has been used by the SCSEP for years to distinguish which veterans
qualify for a priority for SCSEP services.
Descriptions of the new definitions follow:
Additional indicators: Following the structure established in the
2006 OAA Amendments, we define additional indicators to distinguish
them from core indicators; additional indicators are those indicators
not subject to goals and corrective action. We currently implement only
two additional indicators--one-year retention and customer
satisfaction. These are the additional indicators required by the 2006
OAA Amendments. At this time, the Department declines to add any
additional indicators, but the regulations reserve the Secretary's
authority, under section 513(b)(2)(C), to develop new additional
measures when the Secretary determines that such additional indicators
are appropriate for evaluation of services and performance.
At risk for homelessness: The Department defines at risk for
homelessness in relation to the definition of homeless, such that a
person is at risk for homelessness if the person is likely to become
homeless and is unable, using his or her own resources and support
network, to obtain housing.
Community service employment: The 2006 OAA Amendments added a
definition of community service employment. We took the definition here
directly from the statute.
Core indicators: The 2006 OAA Amendments establish core indicators
as a new category of indicators that are subject to goal-setting and
corrective action. The indicators in the definition are those listed in
the statute.
Frail: A few commenters urged various definitions from sources such
as the Older Americans Act and the Journal of Gerontology, Another
commenter suggested consultation with the Administration on Aging. We
adopt the definition of frail that is in the Older Americans Act in
order to promote consistency with other OAA programs.
Homeless: We adopt the definition of homeless that is in the
McKinney-Vento Homeless Assistance Act; that Act's definition of
homeless has consistently been used by the SCSEP for data collection
purposes. One commenter recommended that we adopt a definition of
homeless contained in a bill pending in Congress; however, the
Department determined that the more prudent course was to adopt a
definition already in statute.
Limited English Proficiency: A few commenters urged various
definitions from sources such as those used by the Department of
Education and the Workforce Investment Act of 1998 (WIA). We adopt the
definition of limited English proficiency (LEP) that is used by the
Federal Interagency Working Group on Limited English Proficiency. The
LEP Working Group was created at the request of Assistant Attorney
General for Civil Rights and includes members representing more than 35
federal agencies; the group's focus is to ensure that limited English
proficient persons have meaningful access to federal and federally-
assisted programs. Its Web site, maintained by the U.S. Department of
Justice, is http://www.lep.gov. ETA and the Department's Civil Rights
Center adopted this definition for use in official guidance to the
workforce system in 2004. That guidance may be viewed at http://wdr.doleta.gov/directives/corr_doc.cfm?DOCN=1488.
Use of this
definition by the SCSEP will promote consistency within the workforce
system.
Low employment prospects: The Department interprets the statute's
term ``low employment prospects'' to be essentially equivalent to the
similar phrase which also appears in the statute, ``poor employment
prospects.'' ``Poor employment prospects'' also appeared in the prior
OAA Amendments and was defined in the prior SCSEP rule. The Department
developed the definition of low employment prospects from the prior
definition of poor employment prospects.
Low literacy skills: A few commenters urged various definitions
such as those used by the Department of Education and WIA. In an effort
to maintain program consistency, the Department defines low literacy
skills based on a definition of a very similar term, ``literacy skills
deficient,'' which is already in use in the SCSEP through the Data
Collection Handbook.
Most-in-need: Most-in-need is a label for the core indicator that
tracks ``the number of participating individuals described in
subsection (a)(3)(B)(ii) or (b)(2) of section 518.'' Pub. L. 109-365
Sec. 513(b)(1)(E).
Persistent Unemployment: The Department defines persistent
unemployment by reference to the unemployment rate for a locale, as a
rate that is more than 20 percent higher than the national average for
two of the last three years.
Rural: We received suggestions about this definition that cited
sources such as the Office of Management and Budget,the Administration
on Aging, and the Economic Research Service at the Department of
Agriculture. We have decided to align this definition of rural with
that of the Rural Health Service at the U.S. Department of Health and
Human Services; this is also consistent with the approach taken by the
Economic Research Service at the Department of Agriculture. This
definition is the broadest one available. First, the definition of
rural includes areas not designated as metropolitan statistical areas
by the Census Bureau. Information on which locations have been
designated as metropolitan by the Census Bureau is available on the
Census Bureau's Web site at census.gov/population/www/estimates/
metrodef.html. To identify a particular Census tract, visit the Web
page at ffiec.gov/geocode/default.htm and enter a street address.
Second, rural also includes segments of metropolitan counties that have
been assigned a Rural Urban Commuting Area (RUCA) code between four and
ten. To determine whether a portion of a metropolitan county has been
so classified, readers may consult the RUCA codes, which can currently
be located at the Web site of the Economic Research Service of the U.S.
Department of Agriculture,
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ers.usda.gov/data/ruralurbancommutingareacodes/. Finally, Census tracts
that are larger than 400 square miles, have a population density of
less than 30 people per square mile, and have been assigned RUCA codes
2 or 3, are also considered rural. Further information on the Rural
Health Service's rural classification system, including a list of areas
classified by the Service as rural, can be found at their Web site,
ruralhealth.hrsa.gov/funding/eligibilitytestv2.asp. The University of
Washington has created a zip-code-specific approximation of rural
status which can be downloaded at depts.washington.edu/uwruca/
data.html.
Severe disability: We adopt the definition of severe disability
that is in the Older Americans Act.
Severely limited employment prospects: The Department developed the
definition of severely limited employment prospects to relate to the
definition of low employment prospects; a person faces severely limited
employment prospects when that person has more than one significant
barrier to employment.
Veteran: We define veteran by reference to the Jobs for Veterans
Act, 38 U.S.C. 4215(a). The SCSEP has consistently used that statute to
distinguish precisely which veterans qualify for SCSEP priority and
thus it was a logical source of our definition. We note that under
certain circumstances spouses of veterans qualify as veterans under the
Jobs for Veterans Act.
The following terms were defined in the prior SCSEP rule but have
been modified:
Disability: The only change to the definition of disability
concerns the citation. The definition comes from the Older Americans
Act, and the paragraph number to which the definition is assigned
changed as a result of the 2006 OAA Amendments.
National grantee: We modify the definition of National grantee by
removing the word ``Federal'' as a modifier to the word ``public'' to
be consistent with the 2006 OAA Amendments, see Pub. L. 109-365 Sec.
506(g)(5), and by making various technical corrections.
Subpart G--Performance Accountability
What performance measures/indicators apply to SCSEP grantees? (Sec.
641.700)
The 2006 OAA Amendments separate SCSEP performance measures into
two categories, core and additional. The Department and each grantee
must agree upon goals for core indicator performance levels before the
start of each program year. A grantee that fails to meet the agreed-
upon core performance levels, which may be adjusted as discussed below,
is subject to corrective action. Additional indicators are not subject
to goal-setting and are, therefore, not subject to corrective action.
However, the statute does mandate that the Department annually publish
each grantee's performance on the additional indicators.
Section 513(a)(3)(b)(1) of the 2006 OAA Amendments lists the core
indicators:
1. Hours (in the aggregate) of community service employment;
2. Entry into unsubsidized employment;
3. Retention in unsubsidized employment for six months;
4. Earnings;
5. The number of eligible individuals served, including the number
of participating individuals described in subsection (a)(3)(B)(ii) or
(b)(2) of section 518.
The Department received numerous comments about whether the fifth
core indicator should be split into two indicators. Many commenters
supported establishing two separate measures, with one measure for
total persons served and one for ``the number of participating
individuals described in subsection (a)(3)(B)(ii) or (b)(2) of section
518.'' Respondents provided a variety of rationales for this position.
For example, several respondents noted that this would be a better
measure of services provided to those individuals with barriers to
employment; one noted that this would ensure service to ``high barrier
populations''; one noted that combining measures would not give an
accurate depiction of the individuals being served; and one noted that
two measures can be beneficial for effective program management.
Several commenters expressed support for one combined measure,
rather than two separate measures. These respondents also provided a
range of rationales for their position. For example, one noted that
grantees cannot control who enters the program and that many of the
individuals that have attributes cited in the priority list cannot find
unsubsidized employment in 27 months; one noted that one measure would
promote more effective services and ensure services to those ``at great
risk'' but falling outside the priority of service list; and one noted
that, based on income eligibility requirements, all individuals
eligible for SCSEP are effectively most-in-need and so a separate
measure for most-in-need is not necessary.
After considering this input, the Department has decided to divide
the fifth core indicator into two separate core indicators: (1) The
number of eligible individuals served, described in section
641.710(a)(5), and (2) the number of participating individuals
described in subsection (a)(3)(B)(ii) or (b)(2) of section 518 (i.e.,
most-in-need), described in section 641.710(a)(6)). This is consistent
with current practice in which we have a separate measure for a
narrower group of participants in need as well as with the
recommendation of a majority of respondents who commented on this
measure, and it more clearly tracks relevant program data than a
combined indicator.
The statute then lists the additional indicators:
1. Retention in unsubsidized employment for one year;
2. Satisfaction of the participants, employers, and their host
agencies with their experiences and the services provided; and
3. Any other indicators of performance that the Secretary
determines to be appropriate to evaluate services and performance.
Pub. L. 109-365 Sec. 513(a)(3)(b)(2).
An agreement to be evaluated on the core indicators of performance
and to report information on the additional indicators of performance
is a requirement for application for, and a condition of, all SCSEP
grants. Pub. L. 109-365 Sec. 513(a)(3).
The Department considered an additional indicator, SCSEP Placement.
The SCSEP Placement indicator has tracked how many exiting participants
were employed for 30 days within the first 90 days after program exit.
Several stakeholders, however, argued against the need for doing so.
Some expressed the view that the SCSEP has too many measures already
and that the SCSEP should be evaluated on only the common measures, as
is the case with other Department programs. Other commenters focused on
the notion that the common measure ``entered employment'' indicator is
sufficient to track placement and that the SCSEP placement rate is
duplicative. The Department is persuaded that the potential benefit of
tracking the SCSEP Placement measure does not outweigh the added burden
on grantees. Accordingly, the SCSEP Placement indicator will no longer
be required.
Several commenters argued in favor of retaining the SCSEP Placement
indicator. Any grantee is welcome to continue its use, as grantees may
use
[[Page 35837]]
additional performance measures that assist them in managing their
SCSEP project.
We received some comments suggesting that the Department adopt
various other additional indicators, such as a measure to record
recruitment; and measures related to the unique aspects of SCSEP (i.e.,
community service and service to a specific population). Other
respondents urged us not to adopt any more indicators. Although the
statute allows the Department to establish ``[a]ny other indicators of
performance that the Secretary determines to be appropriate to evaluate
services and performance'' we choose not to establish any further
indicators at this time. Again, this course was chosen because any
potential benefits of additional reporting do not outweigh the costs of
that reporting.
How are the performance indicators defined? (Sec. 641.710)
Core Indicators
1. Hours (in the aggregate) of community service employment. Hours
(in the aggregate) of community service employment compares the total
number of hours of community service provided by each SCSEP grantee to
the number of community service hours funded by the grant. Current
practice is for SCSEP grantees to report the number of hours of
community service; that is, the number of hours that participants
worked at host agencies. In order to provide a meaningful way to assess
and compare performance, however, it is necessary to transform the
number of hours into a community service participation rate. The
Department began computing such a rate during Program Year 2006. To
calculate the rate, the Department takes the number of community
service hours as reported by each grantee and divides that number by
the total community service hours funded for the grantee, adjusted for
minimum wage differences among the States and areas.
The Department received a variety of comments on this indicator. A
number of these comments expressed support for this performance
indicator because it relates to the community service goal of the
SCSEP, and because community service employment assignments are a
unique and vital aspect of the SCSEP that is valuable to participants
as well as to communities. Several commenters encouraged the Department
in its new practice of transforming the raw data provided by grantees
into a rate that can be the subject of a performance goal. A few
respondents suggested definitions for this indicator; these comments
included recommendations that the performance measure for hours of
community service employment be determined by (1) comparing the number
of community service hours provided to the potential number of
community service hours based on the average current participants; and
(2) dividing the actual number of community service hours completed by
the potential number of community service hours that could be completed
(Enrollee Wages and Fringe Benefits divided by the hourly community
service cost). Finally, a commenter also suggested that participant
training for computer skills and soft skills be counted as community
service hours because of the importance of developing such skills in
today's workforce. Soft skills are short-term pre-vocational services,
including development of learning skills, communication skills,
interviewing skills, punctuality, personal maintenance skills and
professional conduct, to prepare individuals for unsubsidized
employment.
At this time, the Department has decided not to change to the way
this indicator is currently calculated. While a few commenters
suggested slight revisions to the current definition, the Department
declines to adopt those suggestions at present. Though we acknowledge
that computer and soft skills are important for many jobs in current
employment market, the 2006 OAA Amendments define community service
employment to mean part-time, temporary employment (the full definition
is included in the definitions section of these regulations, Sec.
641.140). Furthermore, we concur with those commenters that find value
in data quantifying the hours worked by SCSEP participants in service
to their communities.
Accordingly, grantees will continue to report the raw number of
hours of community service as they have in the past. The Department
clarifies, however, that hours of paid participation in non-host agency
training such as classroom training and on-the-job experience, are
excluded from the hours of community service reported by grantees.
Hours spent on such paid training are also excluded from the total
number of community service hours funded (the denominator when the
Department calculates the rate); excluding non-host agency paid
training from both figures avoids penalizing grantees that provide such
training to their participants.
2. Entry into unsubsidized employment. The 2000 OAA Amendments
defined placement into unsubsidized employment so that it measured how
many exited participants had obtained paid employment for 30 days
within the 90-day period following their program exit. Pub. L. 106-501
Sec. 513(c)(2)(A). The 2006 OAA Amendments eliminate that statutory
definition, and instead require the Department to define each of the
indicators by regulation after consultation with stakeholders. To more
fully align the SCSEP with the indicators required of other federally-
funded employment and training programs, the Department has decided to
define this core indicator in the same manner as the common measures
entered employment indicator. We note that while we did not receive
many comments on this indicator, the input we did receive generally
favored adoption of the common measures and alignment with WIA.
TEGL 17-05, which explains ETA's common measures policy, describes
entered employment as, ``[o]f those who are not employed at the date of
participation: the number of participants who are employed in the first
quarter after the exit quarter divided by the number of adult
participants who exit during the quarter.'' Grantees have been
reporting on this indicator already, and there will not be any change
in their reporting at this time.
3. Retention in unsubsidized employment for six months. As with
entry into unsubsidized employment, the 2006 OAA Amendments eliminated
the 2000 OAA Amendments' definition of six-month retention, and charged
the Department with defining the indicators by regulation.
The Department has decided to define retention in unsubsidized
employment for six months in the same manner as the common measures
employment retention measure; this approach is generally consistent
with the few comments we received on this indicator. Using this
definition will decrease the burden on grantees, as the Department
previously required grantees to report on both the former statutory
six-month indicator (measured 180 days after program exit) as well as
the common measures employment retention measure. Grantees will no
longer be required to conduct a follow-up 180 days after placement, as
they have been doing to comply with the previous statutory retention
indicator.
TEGL 17-05 describes the common measures employment retention
indicator as, ``[o]f those who are employed in the first quarter after
the exit quarter: The number of adult participants who are employed in
both the second and third quarters after the
[[Page 35838]]
exit quarter divided by the number of adult participants who exit
during the quarter.'' Again, grantees have already been reporting on
this indicator, and there will be no change to their reporting at this
time.
4. Earnings. When SCSEP regulations were last published in April
2004, the earnings common measure compared the difference in earnings
pre- versus post-program participation. The Department subsequently
revised its earnings measure in TEGL 17-05 in response to concerns that
focusing on the change in earnings provided a disincentive to serving
people with previous work experience, especially those with higher pre-
program wages, and that in practice the measure was more likely to
indicate participants' previous earnings history than a measure of
program effectiveness. With the revision, the focus of the earnings
measure shifted to post-program earnings. The Department implemented a
new methodology for reporting the earnings measure, which looks at
wages over a six month period following program exit (average
earnings). SCSEP grantees have been reporting on the average earnings
common measure for participants who entered the program on or after
July 1, 2005, since the first quarter of Program Year 2006 and there
will be no change to their reporting at this time.
The Department received a small number of comments on the earnings
measure. Some commenters recommended eliminating this measure; however,
the 2006 OAA Amendments require an earnings measure so the Department
does not have the discretion to eliminate it. We also received a
comment encouraging the Department to calculate earnings based on wages
earned at any time during a quarter (rather than a specific date), and
a suggestion that earnings increase should be measured from entry in
the program to the earnings at six months.
In order to align with similar, federally-funded employment and
training programs, the Department has determined that earnings will be
defined in the same manner as the average earnings common measure. TEGL
17-05 describes average earnings as, ``[o]f those adult participants
who are employed in the first, second and third quarters after the exit
quarter: The total earnings in the second quarter plus total earnings
in the third quarter after the exit quarter divided by the number of
adult participants who exit during the quarter.'' It is important to
note that this measure looks only at those individuals who are included
in the retention measure, so the earnings are a reflection of what
participants who are still working are earning. Previous earnings
measures counted program exiters who were not still employed, which had
the effect of lowering the outcomes and distorted the outcomes of the
measure. By including those who were not employed in the earnings
measure, it was difficult to determine how much those who were employed
were actually earning.
A few respondents encouraged the Department to facilitate grantee
access to unemployment insurance wage records, which would make it much
easier to capture entered employment, retention, and earnings data. The
Department is always interested in improving data collection methods,
and we will continue to explore the possibility of access to
unemployment insurance wage records as an option for future
implementation.
5. Number of eligible individuals served. The 2006 OAA Amendments
list ``the number of eligible individuals served, including the number
of participating individuals described in subsection (a)(3)(B)(ii) or
(b)(2) of section 518'' as the fifth and final core indicator. As
discussed above, the Department has decided it will continue its
current practice of dividing this indicator into two measures to
clearly track relevant program data and for ease of reporting.
The first portion of this indicator, the number of eligible
individuals served (also referred to as the service level) has been
reported by SCSEP grantees for years, and there is no change in the
reporting requirements as a result of the 2006 OAA Amendments. The
number of eligible individuals served performance measure will continue
to be calculated by comparing the total number of participants served
to a grantee's authorized number of positions, adjusted for the
differences in minimum wage among the States and other areas.
6. Most-in-need. The second portion of the statutory fifth and
final core indicator, ``the number of participating individuals
described in subsection (a)(3)(B)(ii) or (b)(2) of section 518''
establishes the most-in-need indicator.
The Department received numerous comments concerning the most-in-
need indicator. In addition to providing feedback on the question of
whether to divide the fifth indicator into two measures, several
respondents discussed the list of characteristics of those to whom a
priority of service will be given. The statutory priority list
contributes to the most-in-need list. However, to the extent that these
comments focused on priority requirements, we have not incorporated the
comments into this Interim Final Rule because the scope of this rule is
limited to the performance measurement system. Non-performance measure
changes to the SCSEP required by the 2006 OAA Amendments, such as the
new priority characteristics, will be addressed in a forthcoming Notice
of Proposed Rulemaking.
Subsection (a)(3)(B)(ii) of section 518 lists the factors relevant
to requesting a waiver to the new 48-month limit on program
participation. It states that a grantee may request an increased period
of participation for individuals who have a severe disability; are
frail or are age 75 or older; meet the eligibility requirements related
to age for, but do not receive, benefits under Title II of the Social
Security Act (42 U.S.C. 401 et seq.); live in an area with persistent
unemployment and are individuals with severely limited employment
prospects; or have limited English proficiency or low literacy skills.
Subsection (b)(2) of section 518 lists characteristics (other than age)
of individuals who have priority for SCSEP services. Priority is to be
given to individuals who: Have a disability; have limited English
proficiency or low literacy skills; reside in a rural area; are
veterans; have low employment prospects; have failed to find employment
after utilizing services provided under title I of WIA; or are homeless
or at risk for homelessness.
The statute is written in such a way that a participant with any
one characteristic from either the waiver list or the priority list
will be included in the most-in-need performance measure. For ease of
administration, the Department has consolidated these two lists into
one list of most-in-need characteristics. Some characteristics, for
example, low literacy skills, are listed in both subsection
(a)(3)(B)(ii) and subsection (b)(2) of section 518; such
characteristics are only listed once in the most-in-need list. One
statutory description of a characteristic actually contains two
characteristics (``are frail or are age 75 or older,'' Pub. L. 109-365
Sec. 518 (a)(3)(B)(ii)(II)), and so those characteristics are listed
separately here. Each of the thirteen characteristics on the most-in-
need list will be given the same weight.
Because some characteristics, such as poor employment prospects,
are shared by most SCSEP participants, all or nearly all participants
may qualify as most-in-need. To distinguish among the level of
grantees' efforts to enroll participants with additional serious
barriers to employment, and to make the most-in-need measure a more
effective assessment of grantees' compliance with statutory priorities,
grantees will report
[[Page 35839]]
on each characteristic and the most-in-need measure will be an average
of the total number of characteristics per participant served. For
example, if a 70 year-old veteran with a severe disability who lives in
a rural area enrolls in the SCSEP, that participant will be marked as
possessing four of the most-in-need characteristics: Veteran,
disability, severe disability, and rural resident. To restate, then,
the Department will define most-in-need by counting the total number of
the most-in-need characteristics for all participants and dividing by
the number of participants served.
Most-in-need is a core indicator and is, therefore, subject to
goal-setting. However, the 2006 OAA Amendments significantly expanded
the most-in-need list of characteristics. While the most-in-need list
used to contain four characteristics (individuals over age 60 who have
the greatest economic need, greatest social need, or poor employment
history or prospects), the list now contains thirteen characteristics.
Because there is not yet a body of performance data on the new
characteristics, it is not possible to set rational goals for the first
program year for this indicator. Accordingly, the Department will use
Program Year 2007 as a baseline year so that grantees and the
Department may collect sufficient data to set a meaningful goal for
this measure for Program Year 2008. We intend that all grantees will be
required to negotiate goals for and be held accountable to this measure
in Program Year 2008.
At the conclusion of Program Year 2007, the Department will be able
to report on the average number of most-in-need characteristics per
participant for each grantee, as well as the total number of
participants exhibiting each characteristic.
Additional Indicators
1. Retention in unsubsidized employment for one year. The 2006 OAA
Amendments include retention in unsubsidized employment for one year as
an additional indicator. This is a new indicator for the SCSEP.
Many respondents commented on this measure. In terms of choosing
the time at which to measure one-year retention: no one recommended
measuring one-year retention during the 5th quarter after the exit
quarter, a few commenters recommended the 365th day, and many
commenters encouraged the Department to measure this indicator during
the 4th quarter after the exit quarter. One commenter recommended
measuring one-year retention during the fourth quarter but not later
than the 365th day. Another commenter suggested this indicator be
measured during the twelfth month after the date the unsubsidized
employment began.
Consistent with the majority of comments received on this question,
the Department is defining this indicator to align with the WIA one-
year retention performance measure. ETA defined the WIA one-year
retention measure in its WIA Annual Report, General Reporting
Instructions, Revised 2006, as, ``[o]f those who are employed in the
first quarter after the exit quarter: the number of participants who
are employed in the fourth quarter after the exit quarter divided by
the number of participants who exit during the quarter.'' This measure
looks only at those individuals who are included in the entered
unsubsidized employment indicator.
By examining whether participants are employed in the fourth
quarter after the quarter of exit, grantees will be focused on whether
participants who entered unsubsidized employment are still employed
approximately one calendar year after exiting the SCSEP. For example,
if a participant exits during the first quarter of the calendar year
(between January 1 and March 31), the fourth quarter after the exit
quarter will be the first quarter of the next calendar year (January 1
to March 31). Retention is measured at one year, only one quarter after
measuring retention at six months, because the one-year retention
measure has been determined by the Department to most accurately
capture retention twelve months after program exit.
The Department received many comments expressing the view that
obtaining follow-up data one year after program exit will be a
challenge. One commenter noted that while participants are generally
grateful for the services provided through the SCSEP, participants
sometimes feel ``a sort of infringement'' about providing follow-up
information. One commenter noted that employers sometimes hesitate to
release employment and wage information despite being provided with a
release signed by the participant. One commenter noted that in her
experience it is difficult to maintain participant contact more than
six months after program exit; similarly, another commenter pointed out
that securing follow-up information becomes more difficult the longer
the participant has been exited from the SCSEP. Another commenter
maintained that it may be difficult for participants who satisfy the
new priority characteristics to remain employed for one year. One
commenter argued that grantees should not be penalized if follow-up
data is unobtainable; another contended that grantees should not be
punished if a participant must exit the workforce due to failing health
before one-year retention gets measured. Finally, one commenter
suggested that the Department delay implementation of the one-year
retention measure until the SCSEP gains access to Unemployment
Insurance wage records.
The Department recognizes that obtaining one-year retention data
may prove to be a demanding task. However, the 2006 OAA Amendments
require a one-year indicator, and the Department must follow the
mandates of the statute. The Department remains available to provide
technical assistance as grantees implement this new indicator. Indeed,
it is our intention to share with grantees whatever information we can
that will facilitate this data collection process. And, as stated with
regard to the earnings measure, the Department has been exploring
options for access to unemployment insurance wage records as an option
for future implementation. Finally, note that we have no current
intention of altering the exclusion policies relating to participants
that must exit the program or the workforce due to extraordinary
circumstances such as ill health. As listed in TEGL 17-05, the
circumstances for excluding participants in the common measures
calculations include institutionalization, health/medical issues for
self or family, deceased, and called to active duty from the reserves.
2. Satisfaction of the participants, employers, and their host
agencies with their experiences and the services provided. The 2006 OAA
Amendments continue the customer satisfaction indicator. The Department
envisions no change in this reporting requirement at this time.
Grantees will continue to track three distinct measures of customer
satisfaction: one measure for participant satisfaction, one measure for
employer satisfaction, and one measure for host agency satisfaction.
Customer satisfaction for all three groups will continue to be
determined using an established methodology.
The Department received a handful of comments on this performance
measure. Several commenters recommended that the Department maintain
the current system because the information received is valuable and the
system appears to be working satisfactorily. A small number of
commenters suggested that the Department entirely eliminate customer
satisfaction surveys or at least not use them as a performance measure.
Several commenters suggested that customer satisfaction surveys are
either too costly
[[Page 35840]]
to administer, do not add value to the program, or should be
administered less frequently than every year. There was also a range of
comments on related issues: A small number of commenters suggested that
the Department not conduct the satisfaction surveys in Program Year
2006 because the recent national grant competition would lead to data
that is not useful; some respondents offered suggestions on how to
improve the survey instrument such as convening focus groups to refine
survey questions, shortening the surveys, and adding more questions to
the surveys; and one commenter suggested that the Department, rather
than the grantees, conduct the surveys of employers.
As stated with regard to the other statutorily-mandated performance
measures, it is not within the scope of the Department's discretion to
eliminate the customer satisfaction indicator, and the surveys will be
administered during Program Year 2006. There are, however, plans for a
pilot project in 2007 to test the feasibility of the Department
conducting the employer surveys. The Department will take other
commenters' suggestions under advisement.
To summarize, the Department will now be collecting data on eight
performance indicators, six of which are core indicators, subject to
goal-setting:
Core Indicators:
(1) Hours (in the aggregate) of community service employment;
(2) Entry into unsubsidized employment (common measure);
(3) Retention in unsubsidized employment for six months (common
measure);
(4) Earnings (common measure);
(5) Number of eligible individuals served;
(6) The number of most-in-need individuals served/number of
participating individuals described in subsection (a)(3)(B)(ii) or
(b)(2) of section 518 (second part of fifth statutory core indicator,
treated here as separate indicator).
Additional Indicators:
(1) Retention in unsubsidized employment for one year;
(2) Satisfaction of the participants, employers, and their host
agencies with their experiences and the services provided.
By using the SCSEP Performance and Results Quarterly Progress
Report, or SPARQ, system, grantees only need to input the raw data, and
the data management system will complete the performance measure
calculations. Performance measure results may be viewed at virtually
any time by producing a grantee or sub-grantee Quarterly Progress
Report. Grantees are also provided with data quality reports which
indicate the existence of any missing or impermissible data values.
How will the Department and grantees initially determine and then
adjust expected levels of performance for the core performance
measures? (Sec. 641.720)
The Department and SCSEP grantees have been reaching agreement on
performance levels for several years and the Department does not
envision any change at this time to the process for reaching agreement.
The performance levels will continue to be agreed upon before the
beginning of each Program Year. The Department will continue to
initially propose a baseline performance level, taking into
consideration such things as grantees' past performance, the need for
continuous improvement, and the statutory adjustment factors described
in Sec. 641.720(b). A grantee may respond with data on either the
statutory adjustment factors or other relevant dynamics to alter the
proposed goals. At the conclusion of this process, the parties will
form agreement on performance levels for the coming Program Year. A
grantee may submit comments to the Department concerning the grantee's
satisfaction with the negotiated levels; those comments will be made
available for public review.
Section 641.720(a)(5) implements another new provision in the 2006
OAA Amendments which concerns making public the agreed-upon performance
levels. Once all agreements have been reached, the Department will make
available for public review the final expected levels of performance
for each grantee, including any comments submitted by any grantee about
the grantee's satisfaction with the agreed-upon levels.
The Department received a few comments about the process of
reaching agreement on the expected levels of performance, and on the
goals themselves. A small number of respondents expressed general
support for the current process, and a small number of commenters
suggested that in the goal-setting process more weight should be given
to grantee input. There were also comments suggesting that the same
performance goals be established for all national grantees or that the
Department make public the specific criteria and rationale used to
justify different goals for each grantee.
The Department elects to retain its current process of reaching
agreement on performance goals as this process already allows for
significant grantee input, and is an objective, data-driven process. We
will not set the same goals for all national grantees because that
would not account for the varying performance levels among the
grantees, nor would allow for reasonable levels of continuous
improvement. In terms of the information available to grantees about
the goals set for other grantees, we note that all grantees have access
to all other grantees' performance outcomes, as well as the performance
levels initially proposed by the Department and the final, negotiated
goals. Further, the Department explains to each grantee the objective,
data-driven process used in reaching agreement on the performance
levels, and the same process is consistently employed with all
grantees. Finally, we again note the new provision in the 2006 OAA
Amendments that allows grantees to submit, and the Department to make
public, comments concerning a grantee's satisfaction with the agreed-
upon levels.
The 2006 OAA Amendments create a graduated ``floor'' for the entry
into unsubsidized employment indicator. That is, under the 2000 OAA
Amendments, the entry into unsubsidized employment measure could not be
less than 20 percent. The 2006 OAA Amendments require the following
levels of entry into unsubsidized employment: 21 percent for Program
Year 2007; 22 percent for Program Year 2008; 23 percent for Program
Year 2009; 24 percent for Program Year 2010; and 25 percent for Program
Year 2011. In the pursuit of continuous improvement, and based on the
prior performance of the grantees, the Department has consistently
established a performance level higher than the graduated floor set by
statute for many grantees, and expects to continue to do so.
The 2006 OAA Amendments continue the practice of allowing grantees
to petition for an adjustment to the agreed-upon performance levels, in
recognition of the reality that circumstances affecting program
performance can change markedly over the course of a year. The list of
statutory adjustment factors has changed. Section 513(a)(2)(D) of the
2006 OAA Amendments limits the new adjustment factors to:
(i)(a) High rates of unemployment in the areas served by a grantee,
relative to other areas of the State involved or Nation; or
(i)(b) High rates of poverty in the areas served by a grantee,
relative to other areas of the State involved or Nation; or
(i)(c) High rates of participation in TANF (Temporary Assistance
for Needy Families, a program of block grants to States established
under part A of title
[[Page 35841]]
IV of the Social Security Act (42 U.S.C. 601 et seq.)), in the areas
served by a grantee, relative to other areas of the State involved or
Nation;
(ii) Significant economic downturns in the areas served by the
grantee or in the national economy;
(iii) Significant numbers or proportions of participants with one
or more barriers to employment, including individuals described in
subsection (a)(3)(B)(ii) or (b)(2) of section 518 (most-in-need),
served by a grantee relative to such numbers or proportions for
grantees serving other areas of the State or Nation;
(iv) Changes in Federal, State, or local minimum wage requirements;
and
(v) Limited economies of scale for the provision of community
service employment and other authorized activities in the areas served
by the grantee.
In petitioning for an adjustment, grantees must support their case
with data based on one or more of the factors from this list. Obtaining
an adjustment to negotiated performance levels is a data-driven
process.
How will the Department assist grantees in the transition to the new
core performance indicators? (Sec. 641.730)
Section 513(d)(1) of the 2006 OAA Amendments calls for the
Department, as soon as practicable after July 1, 2007, to determine
whether grantees have, for Program Year 2006, met the performance
levels set for the core indicators for Program Year 2007. The
Department will also determine whether grantees have achieved the
statutory percentages required for placement. If the Department
determines that a grantee failed to achieve either the agreed-upon
performance levels or the required placement percentages, the
Department will provide technical assistance to assist that grantee to
meet the agreed-upon performance levels and/or the applicable placement
percentage during Program Year 2007. This technical assistance is for
the purpose of assisting the grantees to be able to work successfully
with the new performance measures and does not count as technical
assistance provided under Sec. 513(d)(2) or (3).
Further, and as discussed in relation to the most-in-need measure,
Program Year 2007 will be treated as a baseline year for the most-in-
need indicator so that grantees and the Department may gather data on
the expanded list of characteristics. Expected levels of performance
will be set for Program Year 2008 for the most-in-need measure.
How will the Department determine whether a grantee fails, meets, or
exceeds the expected levels of performance for the core indicators and
what will be the consequences of failing to meet expected levels of
performance? (Sec. 641.740)
The Department will annually evaluate the performance of each
grantee with respect to the levels achieved for each of the core
indicators of performance in comparison to the levels of performance
set by agreement (including any adjustments). As required by the
statute, the Department's evaluation will be published, and information
on each grantee's performance on the core indicators will be made
available for public review. Information on the annual performance of
each grantee with respect to the additional performance indicators will
also be published and made available for public review. According to
the statute, the Department will report the results of the Department's
annual evaluation to Congress.
Sections 513(d)(2)(A) and 513(d)(3)(A) of the 2006 OAA Amendments
require the Department to determine whether a grantee has met or failed
to meet the agreed-upon levels of performance for the core indicators
``not later than 120 days after the end of each program year.'' In
evaluating Program Year performance, and although we did receive
comments urging various other approaches, the Department will continue
to aggregate the core indicators to determine if, on the whole, a
grantee met its performance objectives (including any adjustment made.)
The aggregate is calculated by combining the percentage of goals
achieved on each of the individual core indicators to obtain an average
score.
The Department received many comments concerning the evaluation of
performance outcomes. Several commenters recommended staying with the
methodology that is currently used, i.e., requiring that grantees
achieve at least 80 percent of the negotiated levels of performance for
the aggregate of all the core indicators. Other commenters suggested
that any grantee that meets or exceeds the negotiated (i.e.,
``expected'') levels of performance in the aggregate for a majority of
the core indicators should be considered to have met the expected
levels of performance. A small number of commenters suggested lowering
the threshold for achievement of expected levels of performance in the
aggregate for all core indicators to 65 percent.
The Department has decided to continue to determine that a grantee
has failed to meet its performance measures when it is does not meet 80
percent of the agreed-upon level of performance for the aggregate of
all the core indicators. Performance in the range of 80 to 100 percent
constitutes meeting the level for the core performance measures.
Performance in excess of 100 percent constitutes exceeding the level
for the core performance measures.
The Department also received comments expressing concern about
achieving the expected levels of performance given a service population
distinguished by hard-to-serve characteristics. A small number of
respondents recommended separate performance goals for separate
population groups, one for those most-in-need and one for those not
most-in-need. A few commenters suggested separate performance goals for
priority populations and participants who did not have the priority
characteristics. The Department chooses to continue the practice of
setting unified expected levels of performance for the SCSEP population
as a whole, rather than setting separate goals for separate
populations. Performance goals currently covering all participants
already account for those individuals with priority and/or most-in-need
characteristics because performance goals are based in large part on
each grantee's past performance, which includes the outcomes of the
most-in-need and priority participants. These populations will continue
to be accounted for in the same manner.
If the Department determines that a State or national grantee fails
to meet the expected levels of performance for the core indicators, the
Department, after each year of such failure, will provide technical
assistance to the failing grantee and will require the failing grantee
to submit a corrective action plan not later than 160 days after the
end of the Program Year. The corrective action plan must detail the
steps the grantee will take to meet the expected levels of performance
in the next Program Year.
A national grantee that fails to meet the expected levels of
performance for the core indicators for four consecutive years
(beginning with Program Year 2007) will not be allowed to compete in
the subsequent SCSEP grant competition following the fourth consecutive
year of failure but may compete in the next grant competition after
that subsequent competition.
If the Department determines that a State grantee fails to meet the
expected levels of performance for the core
[[Page 35842]]
indicators for three consecutive years (beginning with Program Year
2007) the Department will require the State to compete the SCSEP funds
awarded under section 506(e) of the OAA for the first full Program Year
following the Department's determination. The grantee that is then
awarded the SCSEP grant will administer the SCSEP in that State and
will be subject to the same rules and responsibilities as the State
grantee. We emphasize that the failure of a State grantee does not mean
that the SCSEP would cease or lapse in a State; it merely means that a
different entity would be chosen to administer the existing program.
Indeed, the 2006 OAA Amendments require that grant applicants be
evaluated, among other things, for their ability to minimize disruption
in services for participants and in community services provided. Pub.
L. 109-365 Sec. Sec. 503(a)(6), 514(c)(9).
A few commenters suggested that the same criteria for sanctions be
applied to State and national grantees. Congress decided to apply
corrective actions to national grantees who fail to achieve the
expected levels of performance for four consecutive years, while State
grantees are subject to corrective action if they fail to achieve their
performance goals for three consecutive years and the Department must
implement the statute as written.
Finally, under the 2000 OAA Amendments, each national grantee in a
State was required to meet the goals agreed upon for the State as well
as that grantee's national performance goals. The 2006 OAA Amendments
alter those requirements so that national grantees are now held
accountable only for their national goals.
Will there be performance-related incentives? (Sec. 641.750)
Section 517(c)(1) of the 2006 OAA Amendments authorizes the
Department to re-obligate recaptured funds for incentive grants and
section 502(e)(2)(B)(iv) authorizes the Department to award incentives
for exemplary performance. Section 641.750 of these regulations
addresses performance-based incentives for grantees. Such incentives
may take the form of financial or non-financial awards. The Department
will issue guidance setting out the procedures and standards that will
be used to award the incentives. The Department will exercise this
authority at its discretion.
Other Comments Received
The Department received a variety of comments that have not been
mentioned above. A summary of the input received on each subject was
posted on the SCSEP Web site at http://www.doleta.gov/seniors. Some
comments received suggested actions that contradict the 2006 OAA
Amendments that we are implementing; the Department does not have the
authority to act in contradiction to the statute. Several other
comments exceeded the scope of this Interim Final Rule by discussing
policies in the 2006 OAA Amendments that are not directly related to
performance measures. A forthcoming Notice of Proposed Rulemaking
(NPRM) will address all non-performance measure changes to the SCSEP
resulting from the 2006 OAA Amendments; the public will be invited to
comment on the NPRM, and the Department will consider the out-of-scope
comments submitted here when it considers the comments that are
submitted in response to the NPRM. Other performance-related comments
will be taken under advisement.
III. Administrative Information
Regulatory Flexibility Analysis, Executive Order 13272, Small Business
Regulatory Enforcement Fairness Act
The Regulatory Flexibility Act (RFA), 5 U.S.C. Chapter 6, requires
the Department to evaluate the economic impact of this rule with regard
to small entities. The RFA defines small entities to include small
businesses, small organizations including not-for-profit organizations,
and small governmental jurisdictions. The Department must determine
whether the rule imposes a significant economic impact on a substantial
number of such small entities.
First, the Department has determined that this Interim Final Rule
does not affect a substantial number of small entities. There are 74
SCSEP grantees; 50 of these are States and are not small entities as
defined by the RFA. Six grantees are governmental jurisdictions other
than States (four grantees are territories such as Guam, one grantee is
Washington, DC, and another grantee is Puerto Rico). Governmental
jurisdictions must have a population of less than 50,000 to qualify as
a small entity for RFA purposes and the population of these six SCSEP
grantees each exceeds 50,000. The remaining 18 grantees are non-profit
organizations, which includes some large national non-profit
organizations. Eighteen is simply not a substantial number; in fact, it
is a minute number compared to the total number of non-profits in the
country, which has been estimated to be over one million.
The Department has also determined that the economic impact of this
Interim Final Rule is not significant because the additional burden
imposed by the new performance measurement system will not impose any
considerable costs on grantees. In addition, all costs are covered by
the SCSEP program money provided to grantees. Two performance measures
that had been statutorily required in the 2000 OAA Amendments are now
being dropped: the indicator known as ``SCSEP placement,'' which
determined that an unsubsidized placement had been accomplished if a
participant worked 30 days within the first 90 days after program exit,
and the retention indicator which examined whether the participant was
still employed 180 days after program exit. Based on our program
experience, we estimate that it takes approximately fifteen minutes for
program staff to capture each of those indicators. Accordingly,
grantees will see a cost savings equivalent to 30 minutes of program
staff time per placement.
Conversely, two changes required by the 2006 OAA Amendments will
necessitate additional expenditures by grantees. First, there are
changes in the list of which characteristics qualify a participant as
most-in-need that will require nominal staff time to implement, mostly
at the beginning of the first Program Year under this Interim Final
Rule as grantee staff adjust to the new list. We note that the most-in-
need indicator itself is not new and so grantee staff are already used
to the process of capturing information on a list of characteristics.
Accordingly, and based on our program expertise, we estimate that
grantee staff will spend an average of one minute per participant
adjusting to the new list of characteristics.
Second, the addition of the one-year retention measure represents
the most time-consuming change in the set of performance measures.
Implementing this indicator requires grantee staff to conduct an
additional follow-up with an employer to determine whether the
participant is still employed. Given the considerable length of time
that will elapse between program exit and this follow-up, grantee staff
may have to initiate several contacts with an employer before the
information sought can be gathered. The Department acknowledges the
several comments received on this point in response to the notice
published in the Federal Register. Accordingly, although we estimate
that earlier follow-up contacts may each be successfully accomplished
in fifteen minutes, based on our program expertise, we allow that the
one-year retention follow-up will take an average of thirty minutes per
placed participant.
[[Page 35843]]
For each placement, then, we have estimated that grantees will see
cost savings equivalent to thirty minutes of staff time and will be
required to invest a new thirty minutes of staff time. These amounts
cancel each other out. The effect of the changes to the most-in-need
indicator end up being the net effect of the new performance measures:
An additional amount equal to one minute of staff time per participant.
Applying our program expertise we estimate that program staff
persons perform work roughly equivalent to that performed by a grade
12, step 1 Federal employee. The base pay hourly rate for such an
employee is $26.53. Adding one-third additional funds for fringe
benefits, the total hourly rate for this employee becomes $35.28. One
minute of such a person's time would cost $0.59. The smallest SCSEP
national grant award goes to two organizations that each have the
capacity to serve 205 participants. Multiplying 205 times fifty-nine
cents equals $120.95. The smallest SCSEP national grants are over $1.1
million. The expenditure of roughly $121 is not significant in terms of
a budget of over $1.1 million. We further note that the capacity to
serve participants is always related to the award amount, so national
grantees with different (higher) grant awards would not spend any
greater a percentage of their funds on the implementation of these
performance measures even though they would serve more participants.
According to the above analysis, we therefore determine and certify
that this Interim Final Rule does not impose a significant economic
impact on a substantial number of small entities. The Department
welcomes comments on this RFA certification.
We note that this analysis is also applicable under Executive Order
13272; for those purposes as well we certify that this Interim Final
Rule does not impose a significant economic impact on a substantial
number of small entities.
The Department has also determined that this rule is not a ``major
rule'' for purposes of the Small Business Regulatory Enforcement
Fairness Act (SBREFA), 5 U.S.C. Chapter 8. SBREFA requires agencies to
take certain actions when a ``major rule'' is promulgated. SBREFA
defines a ``major rule'' as one that will have an annual effect on the
economy of $100,000,000 or more; that will result in a major increase
in costs or prices for, among other things, State or local government
agencies; or that will significantly and adversely effect the business
climate. For the reasons already discussed, the Department estimates
that the only additional costs to grantees implementing these SCSEP
regulations will be $0.59 per participant. Accordingly, none of the
definitions of ``major rule'' apply in this instance.
Executive Order 12866
Executive Order 12866 requires that for each ``significant
regulatory action'' proposed by the Department, the Department conduct
an assessment of the proposed regulatory action and provide the Office
of Management and Budget (OMB) with the proposed regulation and the
requisite assessment prior to publishing the regulation. A significant
regulatory action is defined to include an action that will have an
annual effect on the economy of $100 million or more, as well as an
action that raises a novel legal or policy issue.
The performance measures defined and implemented by this rule will
not have an annual effect on the economy of $100 million or more, for
the reasons outlined above, but do raise novel policy issues related to
implementing the performance measures required by the 2006 OAA
Amendments to the SCSEP. Accordingly, the OMB has reviewed this Interim
Final Rule.
Paperwork Reduction Act
The purposes of the Paperwork Reduction Act of 1995 (PRA), 44
U.S.C. 3501 et seq., include minimizing the paperwork burden on
effected entities. The PRA requires certain actions before an agency
can adopt or revise the collection of information, including publishing
a summary of the collection of information and a brief description of
the need for and proposed use of the information.
The performance accountability system described in this Interim
Final Rule requires grantees to continue to maintain electronic
participant records that include the data needed for each performance
indicator. Quarterly and annual reports on performance measures are
generated using these electronic records. Grantees may use the SPARQ
computer system developed by the Department for the SCSEP, or they may
maintain their own computer database as long as they are able to
electronically provide the necessary data for the quarterly and annual
reports. These information gathering activities are required to
implement the performance measurement system enacted in the 2006 OAA
Amendments, and will promote program effectiveness by providing
valuable data on program performance.
The forms used until now by grantees to maintain and report
performance measures data were approved by the OMB and assigned OMB
control number 1205-0040. Revised forms that account for the changes in
the performance measures described in this Interim Final Rule have been
submitted as required by the PRA as modifications to existing forms,
using the same control number.
The Department estimates that the public reporting burden for this
collection of information is an average of 8.4 minutes per response.
Note that this estimate does not represent the total burden on grantees
for all SCSEP paperwork, rather it is an estimate of the burden
resulting just from the paperwork directly related to the performance
measures.
The Department invites comments on its Paperwork Reduction
Analysis.
Unfunded Mandates Reform Act
For purposes of the Unfunded Mandates Reform Act of 1995, this rule
does not include any Federal mandate that may result in increased
expenditure by State, local, and tribal governments in the aggregate of
more than $100 million, or increased expenditures by the private sector
of more than $100 million.
Executive Order 13132
The Department has reviewed this rule in accordance with Executive
Order 13132 regarding federalism and has determined that it does not
have ``federalism implications.'' The rule does not ``have substantial
direct effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.'' This interim
rule defines and implements performance measures for the SCSEP, and
while States are SCSEP grantees, this rule merely makes changes to data
collection processes that are ongoing. Requiring State grantees to
implement these changes does not constitute a ``substantial direct
effect'' on the States, nor will it alter the relationship or
responsibilities between the Federal and State governments.
Executive Order 13045
Executive Order 13045 concerns the protection of children from
environmental health risks and safety risks. This rule defines and
details the performance measures to be utilized by the SCSEP, a program
for older Americans, and has no impact on safety or health risks to
children.
Executive Order 13175
Executive Order 13175 addresses the unique relationship between the
Federal
[[Page 35844]]
Government and Indian tribal governments. The order requires Federal
agencies to take certain actions when regulations have ``tribal
implications.'' Required actions include consulting with Tribal
Governments prior to promulgating a regulation with tribal implications
and preparing a tribal impact statement. The order defines regulations
as having ``tribal implications'' when they have substantial direct
effects on one or more Indian tribes, on the relationship between the
Federal Government and Indian tribes, or on the distribution of power
and responsibilities between the Federal Government and Indian tribes.
The Department has reviewed this Interim Final Rule and concludes
that it does not have tribal implications. While tribes are sub-
grantees of national SCSEP grantees, this rule will not have a
substantial direct effect on those tribes, because, as outlined in the
Regulatory Flexibility section of the preamble, there are only small
cost increases associated with implementing this regulation. This
regulation does not affect the relationship between the Federal
Government and the tribes, nor does it affect the distribution of power
and responsibilities between the Federal Government and Tribal
Governments.
The Department notes that it did receive a submission from the
National Indian Council on Aging (NICOA). However, the NICOA's comments
did not raise concerns about the relationship between the Federal
Government and Indian tribes or the distribution of power and
responsibilities between the Federal Government and Indian tribes.
Instead, the NICOA thoroughly responded to the issues outlined in the
notice.
Accordingly we conclude that this rule does not have tribal
implications for the purposes of Executive Order 13175.
Environmental Impact Assessment
The Department has reviewed this rule in accordance with the
requirements of the National Environmental Policy Act (NEPA) of 1969
(42 U.S.C. 4321 et seq.), the regulations of the Council on
Environmental Quality (40 CFR part 1500), and the Department's NEPA
procedures (29 CFR part 11). The rule will not have a significant
impact on the quality of the human environment, and, thus, the
Department has not prepared an environmental assessment or an
environmental impact statement.
Assessment of Federal Regulations and Policies on Families
Section 654 of the Treasury and General Government Appropriations
Act, enacted as part of the Omnibus Consolidated and Emergency
Supplemental Appropriations Act of 1999 (Pub. L. 105-277, 112 Stat.
2681), requires the Department to assess the impact of this rule on
family well-being. A rule that is determined to have a negative affect
on families must be supported with an adequate rationale.
The Department has assessed this rule and determines that it will
not have a negative effect on families. Indeed, we believe the SCSEP
strengthens families by providing job training and support services to
low-income older Americans so that they can obtain fruitful employment
and enjoy increased economic self-sufficiency.
Privacy Act
The Privacy Act of 1974, 5 U.S.C. 552a, provides safeguards to
individuals concerning their personal information which the Government
collects. The Act requires certain actions by an agency that collects
information on individuals when that information contains personally
identifying information such as Social Security Numbers or names.
Because SCSEP participant records are maintained by Social Security
Number, the Act applies here.
A key concern is for the protection of participant Social Security
Numbers. Grantees must collect the Social Security Number in order to
properly pay participants for their community service work in host
agencies. When participant files are sent to the Department for
aggregation, the transmittal is protected by secure encryption. When
participant files are retrieved within the Internet-based SCSEP data
management system, or SPARQ, only the last four digits of the Social
Security Number are displayed. Any information that is shared or made
public is aggregated by grantee and does not reveal personal
information on specific individuals.
The Department works diligently to ensure the highest level of
security whenever personally identifiable information is stored or
transmitted. All contractors that have access to individually
identifying information are required to provide assurances that they
will respect and protect the confidentiality of the data. ETA's Office
of Performance and Technology has been an active participant in the
development and approval of data security measures--especially as they
apply to SPARQ.
In addition to the above, a Privacy Act Statement is provided to
grantees for distribution to all program participants. The grantees
were advised of the requirement in ETA's Older Worker Bulletin OWB-04-
06. Participants receive this information when they meet with a case
worker or intake counselor. When the programs are monitored,
implementation of this item is included in the review.
Executive Order 12630
This rule is not subject to Executive Order 12630, Governmental
Actions and Interference with Constitutionally Protected Property
Rights, because it does not involve implementation of a policy with
takings implications.
Executive Order 12988
This regulation has been drafted and reviewed in accordance with
Executive Order 12988, Civil Justice Reform, and will not unduly burden
the Federal court system. The regulation has been written so as to
minimize litigation and provide a clear legal standard for affected
conduct, and has been reviewed carefully to eliminate drafting errors
and ambiguities.
Executive Order 13211
This rule is not subject to Executive Order 13211, because it will
not have a significant adverse effect on the supply, distribution, or
use of energy.
Plain Language
The Department drafted this Interim Final Rule in plain language.
Effective Date and Absence of Notice and Comment
The Department has, for good cause, determined, in accordance with
5 U.S.C. 553(b)(3)(B), that in order to meet the 2006 OAA Amendments'
requirements for implementation of the SCSEP performance accountability
system it is impracticable and contrary to the public interest to
promulgate these regulations through the normal notice and comment
rulemaking process. In addition, for similar reasons, good cause exists
for this rule to take effect immediately upon publication pursuant to 5
U.S.C. 553(d)(3).
The 2006 OAA Amendments call for several specific changes to the
existing performance accountability system, and require that DOL
establish and implement the new SCSEP performance measures after
consultation with stakeholders by July 1, 2007. Specifically, section
513(a)(1) states that ``The Secretary shall establish and implement,
after consultation with grantees, subgrantees and host agencies
[[Page 35845]]
under this title, States, older individuals, area agencies on aging and
other organizations serving older individuals, core measures of
performance and additional indicators of performance for each grantee
for projects and services carried out under this title.'' Section
513(d)(4) calls for the Department to establish and implement the core
measures and additional indicators of performance identified in the
2006 Amendments ``not later than July 1, 2007.'' Further, section
513(a)(2)(C) requires that ``The Secretary and each grantee shall reach
agreement on the expected levels of performance for each program year
for each of the core indicators of performance * * *. Funds may not be
awarded under the grant until such agreement is reached.'' Finally,
section 513(b)(3) states that ``(t)he Secretary, after consultation
with national and State grantees, representatives of business and labor
organizations, and providers of services, shall, by regulation, issue
definitions of the indicators of performance'' described in OAA-2006.
The tasks required to implement the performance accountability
section are interconnected and the consequences of failing to achieve
them by July 1 are contrary to the public interest. Without regulatory
definitions, the Department will likely be unable to reach agreement
with grantees on expected levels of performance. Without such
agreements, grants may not be awarded. Failure to award grants on time
may result in a gap in service during which needy seniors go without
the assistance authorized by the Act.
The Department has worked diligently to develop a strategy and
achieve the tasks necessary to implement the performance accountability
system by the July 1 deadline. For example, we have implemented an
interagency group to oversee the strategy for implementation; consulted
with stakeholders through a Federal Register notice seeking public
input on the matters covered by this rule; and we published a Training
and Employment Guidance Letter to inform grantees of the anticipated
changes to the performance measures. The establishment of the
regulatory definitions in this Interim Final Rule is critical to this
strategy. In order to carry out this multi-pronged approach, it is not
possible to develop and publish a Notice of Proposed Rulemaking
followed by a Final Rule in the short period of time available.
Therefore, in order to assure that the system is implemented by July 1
and to avoid harmful gaps in service, it is necessary and in the public
interest to implement the regulations through an Interim Final Rule. We
are committed to public input in the development of SCSEP regulations,
including this Interim Final Rule. We provided an opportunity for input
into the development of this regulation; we request and are committed
to considering comments on this rule; and we will be implementing the
remaining regulations to the SCSEP program through Notice and Comment
Rulemaking.
List of Subjects in 20 CFR Part 641
Aged, Employment, Government contracts, Grant programs--labor,
Reporting and recordkeeping requirements.
0
For the reasons discussed in the preamble, the Department of Labor
amends 20 CFR part 641 as follows:
PART 641--PROVISIONS GOVERNING THE SENIOR COMMUNITY SERVICE
EMPLOYMENT PROGRAM
0
1. The authority citation for part 641 continues to read as follows:
Authority: 42 U.S.C. 3056 et seq.
0
2. Amend Sec. 641.140 to:
0
a. Add in alphabetical order the definitions of ``additional
indicators,'' ``at risk for homelessness,'' ``community service
employment,'' ``core indicators,'' ``frail,'' ``homeless,'' ``limited
English proficiency,'' ``low employment prospects,'' ``low literacy
skills,'' ``most-in-need,'' ``persistent unemployment,'' ``rural,''
``severe disability,'' ``severely limited employment prospects,'' and
``veteran'' as set forth below;
0
b. Revise the definitions of ``disability'' and ``national grantee;''
to read as set forth below.
Sec. 641.140 What definitions apply to this part?
* * * * *
Additional indicators mean retention in unsubsidized employment for
one year; and satisfaction of participants, employers and their host
agencies with their experiences and the services provided and any other
indicators of performance that the Secretary determines to be
appropriate to evaluate services and performance. (Sec. 513(b)(2) as
amended by Pub. L. 109-365).
At risk for homelessness means an individual is likely to become
homeless and the individual lacks the resources and support networks
needed to obtain housing.
* * * * *
Community service employment means part-time, temporary employment
paid with grant funds in projects in host agencies through which
eligible individuals are engaged in community service and receive work
experience and job skills that can lead to unsubsidized employment.
(Sec. 518(a)(2) as amended by Pub. L. 109-365).
Core indicators means hours (in the aggregate) of community service
employment; entry into unsubsidized employment; retention in
unsubsidized employment for six months; earnings; the number of
eligible individuals served; and most-in-need (the number of
individuals described in subsection (a)(3)(B)(ii) or (b)(2) of section
518 of the OAA). (Sec. 513(b)(1) as amended by Pub. L. 109-365).
* * * * *
Disability means a disability attributable to mental or physical
impairment, or a combination of mental and physical impairments, that
results in substantial functional limitations in one or more of the
following areas of major life activity:
(1) Self-care;
(2) Receptive and expressive language;
(3) Learning;
(4) Mobility;
(5) Self-direction;
(6) Capacity for independent living;
(7) Economic self-sufficiency;
(8) Cognitive functioning; and
(9) Emotional adjustment.
(42 U.S.C. 3002(13)).
* * * * *
Frail means an individual 55 years of age or older who is
determined to be functionally impaired because the individual--
(1)(i) Is unable to perform at least two activities of daily living
without substantial human assistance, including verbal reminding,
physical cueing, or supervision; or
(ii) At the option of the State, is unable to perform at least
three such activities without such assistance; or
(2) Due to a cognitive or other mental impairment, requires
substantial supervision because the individual behaves in a manner that
poses a serious health or safety hazard to the individual or to another
individual.
(42 U.S.C. 3002(22)).
* * * * *
Homeless includes
(1) An individual who lacks a fixed, regular, and adequate
nighttime residence; and
(2) An individual who has a primary nighttime residence that is:
(i) A supervised publicly or privately operated shelter designed to
provide temporary living accommodations (including welfare hotels,
congregate
[[Page 35846]]
shelters, and transitional housing for the mentally ill);
(ii) An institution that provides a temporary residence for
individuals intended to be institutionalized; or
(iii) A public or private place not designed for, or ordinarily
used as, a regular sleeping accommodations for human beings.
(42 U.S.C. 11302(a)).
* * * * *
Limited English proficiency means individuals who do not speak
English as their primary language and who have a limited ability to
read, speak, write, or understand English.
* * * * *
Low employment prospects means the likelihood that an individual
will not obtain employment without the assistance of the SCSEP or
another workforce development program. Persons with low employment
prospects have a significant barrier to employment. Significant
barriers to employment may include but are not limited to: Lacking a
substantial employment history, basic skills, and/or English-language
proficiency; lacking a high school diploma or the equivalent; having a
disability; being homeless; or residing in socially and economically
isolated rural or urban areas where employment opportunities are
limited.
Low literacy skills means the individual computes or solves
problems, reads, writes, or speaks at or below the 8th grade level or
is unable to compute or solve problems, read, write, or speak at a
level necessary to function on the job, in the individual's family, or
in society.
Most-in-need means participants with one or more of the following
characteristics: Have a severe disability; are frail; are age 75 or
older; are age-eligible but not receiving benefits under title II of
the Social Security Act; reside in an area with persistent unemployment
and have severely limited employment prospects; have limited English
proficiency; have low literacy skills; have a disability; reside in a
rural area; are veterans; have low employment prospects; have failed to
find employment after utilizing services provided under title I of the
Workforce Investment Act of 1998 (29 U.S.C. 2801 et seq.); or are
homeless or at risk for homelessness. (Older Americans Act (OAA)
section 513(b)(1)(E) as amended by Pub. L. 109-365).
National grantee means a public or non-profit private agency or
organization, or Tribal organization, that receives a grant under title
V of the OAA (42 U.S.C. 3056 et seq.) to administer a SCSEP project.
(See OAA section 506(g)(5) as amended by Pub. L. 109-365).
* * * * *
Persistent unemployment means that the annual average unemployment
rate for a county or city is more than 20 percent higher than the
national average for two out of the last three years.
* * * * *
Rural means an area not designated as a metropolitan statistical
area by the Census Bureau; segments within metropolitan counties
identified by codes 4 through 10 in the Rural Urban Commuting Area
(RUCA) system; and RUCA codes 2 and 3 for census tracts that are larger
than 400 square miles and have population density of less than 30
people per square mile.
* * * * *
Severe disability means a severe, chronic disability attributable
to mental or physical impairment, or a combination of mental and
physical impairments, that--
(1) Is likely to continue indefinitely; and
(2) Results in substantial functional limitation in 3 or more of
the following areas of major life activity:
(i) Self-care;
(ii) Receptive and expressive language;
(iii) Learning;
(iv) Mobility;
(v) Self-direction;
(vi) Capacity for independent living;
(vii) Economic self-sufficiency.
(42 U.S.C. 3002(48)).
Severely limited employment prospects means a substantially higher
likelihood that an individual will not obtain employment without the
assistance of the SCSEP or another workforce development program.
Persons with severely limited employment prospects have more than one
significant barrier to employment; significant barriers to employment
may include but are not limited to: Lacking a substantial employment
history, basic skills, and/or English-language proficiency; lacking a
high school diploma or the equivalent; having a disability; being
homeless; or residing in socially and economically isolated rural or
urban areas where employment opportunities are limited.
* * * * *
Veteran means an individual who is a ``covered person'' for
purposes of the Jobs for Veterans Act, 38 U.S.C. 4215(a)(1).
* * * * *
0
3. Revise Subpart G to read as follows:
Subpart G--Performance Accountability
Sec.
641.700 What performance measures/indicators apply to SCSEP
grantees?
641.710 How are the performance indicators defined?
641.720 How will the Department and grantees initially determine and
then adjust expected levels of performance for the core performance
measures?
641.730 How will the Department assist grantees in the transition to
the new core performance indicators?
641.740 How will the Department determine whether a grantee fails,
meets, or exceeds the expected levels of performance for the core
indicators and what will be the consequences of failing to meet
expected levels of performance?
641.750 Will there be performance-related incentives?
Sec. 641.700 What performance measures/indicators apply to SCSEP
grantees?
(a) Indicators of performance. There are currently eight
performance measures, of which six are core indicators and two are
additional indicators. Core indicators (defined in Sec. 641.710) are
subject to goal-setting and corrective action (described in Sec.
641.720); that is, performance level goals for each core indicator must
be agreed upon between the Department and each grantee before the start
of each program year, and if a grantee fails to meet the performance
level goals for the core indicators, that grantee is subject to
corrective action. Additional indicators (defined in Sec. 641.710) are
not subject to goal-setting and are, therefore, also not subject to
corrective action.
(b) Core Indicators. Section 513(b)(1) as amended by Pub. L. 109-
365 establishes the following core indicators of performance:
(1) Hours (in the aggregate) of community service employment;
(2) Entry into unsubsidized employment;
(3) Retention in unsubsidized employment for six months;
(4) Earnings;
(5) The number of eligible individuals served; and
(6) The number of most-in-need individuals served (the number of
participating individuals described in subsection (a)(3)(B)(ii) or
(b)(2) of section 518).
(c) Additional Indicators. Section 513(b)(2) as amended by Pub. L.
109-365 establishes the following additional indicators of performance:
(1) Retention in unsubsidized employment for one year; and
(2) Satisfaction of the participants, employers, and their host
agencies with their experiences and the services provided.
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(3) Any other indicators of performance that the Secretary
determines to be appropriate to evaluate services and performance.
(d) Affected entities. The core indicators of performance and
additional indicators of performance are applicable to each grantee
without regard to whether such grantee operates the program directly or
through sub-contracts, sub-grants, or agreements with other entities.
Grantees must assure that their sub-grantees and lower-tier sub-
grantees are collecting and reporting program data.
(e) Required evaluation and reporting. An agreement to be evaluated
on the core indicators of performance and to report information on the
additional indicators of performance is a requirement for application
for, and is a condition of, all SCSEP grants.
Sec. 641.710 How are the performance indicators defined?
(a) The core indicators are defined as follows:
(1) ``Hours of community service employment'' is defined as the
total number of hours of community service provided by SCSEP
participants divided by the number of hours of community service funded
by the grantee's grant, after adjusting for differences in minimum wage
among the States and areas. Paid training hours are excluded from this
measure.
(2) ``Entry into unsubsidized employment'' is defined by the
formula: Of those who are not employed at the date of participation:
The number of participants who are employed in the first quarter after
the exit quarter divided by the number of adult participants who exit
during the quarter.
(3) ``Retention in unsubsidized employment for six months'' is
defined by the formula: Of those who are employed in the first quarter
after the exit quarter: The number of adult participants who are
employed in both the second and third quarters after the exit quarter
divided by the number of adult participants who exit during the
quarter.
(4) ``Earnings'' is defined by the formula: Of those participants
who are employed in the first, second and third quarters after the exit
quarter: Total earnings in the second quarter plus total earnings in
the third quarter after the exit quarter divided by the number of
participants who exit during the quarter.
(5) ``The number of eligible individuals served'' is defined as the
total number of participants served divided by a grantee's authorized
number of positions, after adjusting for differences in minimum wage
among the States and areas.
(6) ``Most-in-need'' or ``the number of participating individuals
described in subsection (a)(3)(B)(ii) or (b)(2) of section 518'' is
defined by counting the total number of the following characteristics
for all participants and dividing by the number of participants served.
Participants are characterized as most-in-need if they:
(i) Have a severe disability;
(ii) Are frail;
(iii) Are age 75 or older;
(iv) Meet the eligibility requirements related to age for, but do
not receive, benefits under Title II of the Social Security Act (42
U.S.C. 401 et seq.);
(v) Live in an area with persistent unemployment and are
individuals with severely limited employment prospects;
(vi) Have limited English proficiency;
(vii) Have low literacy skills;
(viii) Have a disability;
(ix) Reside in a rural area;
(x) Are veterans;
(xi) Have low employment prospects;
(xii) Have failed to find employment after utilizing services
provided under title I of the Workforce Investment Act of 1998 (29
U.S.C. 2801 et seq.); or
(xiii) Are homeless or at risk for homelessness.
(b) The additional indicators are defined as follows:
(1) ``Retention in unsubsidized employment for 1 year'' is defined
by the formula: of those who are employed in the first quarter after
the exit quarter: The number of participants who are employed in the
fourth quarter after the exit quarter divided by the number of
participants who exit during the quarter.
(2) ``Satisfaction of the participants, employers, and their host
agencies with their experiences and the services provided'' is defined
as the results of customer satisfaction surveys administered to each of
these three customer groups. The Department will prescribe the content
of the surveys.
Sec. 641.720 How will the Department and grantees initially determine
and then adjust expected levels of performance for the core performance
measures?
(a) Initial agreement. Before the beginning of each Program Year,
the Department and each grantee will undertake to agree upon expected
levels of performance for each core indicator, except as provided in
paragraph (b) of Sec. 641.730.
(1) As a first step in this process, the Department proposes a
baseline performance level for each core indicator, taking into account
any statutory performance requirements, the need to promote continuous
improvement in the program overall and in each grantee, the grantee's
past performance, and the statutory adjustment factors articulated in
paragraph (b) of this section.
(2) A grantee may request a revision to the Department's initial
performance level goal determination. The request must be based on data
that supports the revision request. The data supplied by the grantee at
this stage may concern the statutory adjustment factors articulated in
paragraph (b) of this section, but is not limited to those factors; it
is permissible for a grantee to supply data on ``other appropriate
factors as determined by the Secretary.'' Section 513(a)(2)(C) as
amended by Pub. L. 109-365.
(3) The Department may revise the performance level goal in
response to the data provided. The Department then sets the expected
levels of performance for the core indicators. Grantee may agree to the
expected level of performance and thereby receive the grant. At this
point, agreement is reached by the parties and funds may be awarded. If
a grantee does not agree with the offered expected level of
performance, agreement is not reached and no funds may be awarded. A
grantee may submit comments to the Department regarding the grantee's
satisfaction with the expected levels of performance.
(4) Funds may not be awarded under the grant until such agreement
is reached.
(5) At the conclusion of negotiations concerning the performance
levels with all grantees, the Department will make available for public
review the final negotiated expected levels of performance for each
grantee, including any comments submitted by the grantee regarding the
grantee's satisfaction with the negotiated levels.
(6) The minimum percentage for the expected level of performance
for the entry into unsubsidized employment core indicator is:
(i) 21 percent for Program Year 2007;
(ii) 22 percent for Program Year 2008;
(iii) 23 percent for Program Year 2009;
(iv) 24 percent for Program Year 2010; and
(v) 25 percent for Program Year 2011.
(b) Adjustment during the Program Year. After the Department and
grantees reach agreement on the core indicator levels, those levels may
only be revised in response to a request from a grantee based on data
supporting one or more of the following statutory adjustment factors:
(1) High rates of unemployment or of poverty or of participation in
the program of block grants to States for
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temporary assistance for needy families established under part A of
title IV of the Social Security Act (42 U.S.C. 601 et seq.), in the
areas served by a grantee, relative to other areas of the State
involved or Nation.
(2) Significant downturns in the areas served by the grantee or in
the national economy.
(3) Significant numbers or proportions of participants with one or
more barriers to employment, including individuals described in
subsection (a)(3)(B)(ii) or (b)(2) of section 518 as amended by Pub. L.
109-365 (most-in-need), served by a grantee relative to such numbers or
proportions for grantees serving other areas of the State or Nation.
(4) Changes in Federal, State, or local minimum wage requirements.
(5) Limited economies of scale for the provision of community
service employment and other authorized activities in the areas served
by the grantee.
Sec. 641.730 How will the Department assist grantees in the
transition to the new core performance indicators?
(a) General transition provision. As soon as practicable after July
1, 2007, the Department will determine if an SCSEP grantee has, for
Program Year 2006, met the expected levels of performance for the
Program Year 2007. If the Department determines that the grantee failed
to meet Program Year 2007 goals in Program Year 2006, the Department
will provide technical assistance to help the grantee meet those
expected levels of performance in Program Year 2007.
(b) Exception for most-in-need for Program Year 2007. Because the
2006 OAA Amendments expanded the list of most-in-need characteristics
neither the Department nor the grantees have sufficient data to set a
goal for measuring performance. Accordingly, Program Year 2007 will be
treated as a baseline year for the most-in-need indicator so that the
grantees and the Department may collect sufficient data to set a
meaningful goal for this measure for Program Year 2008.
Sec. 641.740 How will the Department determine whether a grantee
fails, meets, or exceeds the expected levels of performance for the
core indicators and what will be the consequences of failing to meet
expected levels of performance?
(a) Aggregate Calculation of Performance. Not later than 120 days
after the end of each Program Year, the Department will determine if a
national grantee has met the expected levels of performance (including
any adjustments to such levels) by aggregating the grantee's core
indicators. The aggregate is calculated by combining the percentage of
goal achieved on each of the individual core indicators to obtain an
average score. A grantee will fail to meet its performance measures
when it is does not meet 80 percent of the agreed-upon level of
performance for the aggregate of all the core indicators. Performance
in the range of 80 to 100 percent constitutes meeting the level for the
core performance measures. Performance in excess of 100 percent
constitutes exceeding the level for the core performance measures.
(b) Consequences--(1) National grantees. (i) If the Department
determines that a national grantee fails to meet the expected levels of
performance in a Program Year, the Department, after each year of such
failure, will provide technical assistance and will require such
grantee to submit a corrective action plan not later than 160 days
after the end of the Program Year.
(ii) The corrective action plan must detail the steps the grantee
will take to meet the expected levels of performance in the next
Program Year.
(iii) Any national grantee that has failed to meet the expected
levels of performance for 4 consecutive years (beginning with Program
Year 2007) will not be allowed to compete in the subsequent grant
competition, but may compete in the next grant competition after that
subsequent competition.
(2) State Grantees. (i) If the Department determines that a State
fails to meet the expected levels of performance, the Department, after
each year of such failure, will provide technical assistance and will
require the State to submit a corrective action plan not later than 160
days after the end of the Program Year.
(ii) The corrective action plan must detail the steps the State
will take to meet the expected levels of performance in the next
Program Year.
(iii) If the Department determines that the State fails to meet the
expected levels of performance for 3 consecutive Program Years
(beginning with Program Year 2007), the Department will require the
State to conduct a competition to award the funds allotted to the State
under section 506(e) of the OAA for the first full Program Year
following the Department's determination. The new grantee will be
responsible for administering the SCSEP in the State and will be
subject to the same requirements and responsibilities as had been the
State grantee.
(c) Evaluation. The Department will annually evaluate, publish and
make available for public review, information on the actual performance
of each grantee with respect to the levels achieved for each of the
core indicators of performance, compared to the expected levels of
performance, and the actual performance of each grantee with respect to
the levels achieved for each of the additional indicators of
performance. The results of the Department's annual evaluation will be
reported to Congress.
Sec. 641.750 Will there be performance-related incentives?
The Department is authorized by sections 502(e)(2)(B)(iv) and
517(c)(1) as amended by Pub. L. 109-365 to use recaptured SCSEP funds
to provide incentive awards. The Department will exercise this
authority at its discretion.
Signed at Washington, DC, this 25th day of June, 2007.
Emily Stover DeRocco,
Assistant Secretary for Employment and Training.
[FR Doc. E7-12541 Filed 6-28-07; 8:45 am]
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