U.S. Department of Labor Employment & Training Administration

SUBJECT : Guidelines for Implementing Workforce Investment System Improvements through Waivers of the Workforce Investment Act (WIA) and the Wagner-Peyser Act

1. Purpose. To announce a new Internet-based system for the submission an processing of state waiver request, and to transmit guidance for the development and submission of a request for waiver of WIA and Wagner-Peyser Act general statutory and/or regulatory provisions.

2. References. The Workforce Investment Act of 1998 (WIA or the Act) (Public Law 105-220 section 189(i)(4)); 20 CFR 661.400 to 661.420. These guidelines do not address the Workforce Flexibility Plan (Work-Flex) provisions at WIA section 192. Separate guidance was issued in TEGL No. 6-99, dated February 22, 2000, on State Work-Flex designation requests.

3. Background. Section 189(i)(4) of WIA authorizes the Secretary to waive certain statutory and regulatory provisions of WIA and of the Wagner-Peyser Act. This general waiver authority is substantially the same as the Secretary's authority granted for one-year periods in the DOL Appropriations Acts for 1997 through 1999. Unlike the Job Training Partnership Act (JTPA) waiver authorities in the various Appropriations Acts, the new waiver authority is not specifically limited to the fiscal year in which it was approved. As described below, waivers approved under this guidance will remain in effect for the length of the State's approved WIA Plan. The Secretary's general statutory and regulatory waiver authority only applies to the provisions of Title I, Subtitles B and E of the Workforce Investment Act and to sections 8-10 of the Wagner-Peyser Act.

This general statutory and regulatory waiver authority provides:

• increased flexibility to States and local areas in implementing reforms to the workforce development system in exchange for State and local accountability for results including improved performance.
• an important opportunity for States and localities to continue to organize services into a workforce investment system through One-Stop Career Centers and School-to-Work systems which enhance the training and employment opportunities available to adults and youth.

4. Principles for Further Reforms of the Workforce Investment System.. The Department of Labor's (DOL) guiding principles for providing flexibility through statutory/regulatory waivers to the State workforce investment systems are the seven Key Principles embodied in the Workforce Investment Act of 1998:

• Streamlining Services through better integration of information, guidance and services at the local level through the One-Stop delivery system.
• Empowering individuals who need employment and training services with the resources and information and guidance needed to make good choices.
• Universal Access for any individual to access the One-Stop system and to core employment-related services.
• Increased accountability at the State, local and service provider levels ensuring a clear focus on results, through mutually agreed upon performance outcomes and customer satisfaction indicators.
• State and Local Flexibility. Providing States, local communities and training systems with the freedom to tailor programs to meet real, locally determined needs.
• Strong Public and Private Sector Roles. Ensuring that business, labor and community organizations are full partners in system design and quality assurance.
• Improved Youth Programs. Improving youth programs through services which emphasize academic and occupational learning

The employment and training community has been provided with new authority to build a Workforce Investment System. We believe that effective use of the authority will demonstrate Federal, State and local commitment to meeting the needs of our joint customers.

5. Statutory and/or Regulatory Requirements Covered by the Waiver Authority. .
Exclusions. The Statutory/Regulatory Waiver provision gives the Secretary authority to grant both statutory and regulatory waivers of WIA (Title I, Subtitles B and E) and Wagner-Peyser Act (Sections 8-10) and contains "exclusions," i.e., elements that may not be waived. Under the Secretary's WIA general statutory and regulatory waiver authority, requirements relating to the following items may not be waived:

1.wage and labor standards, including non-displacement provisions;
2.worker rights, participation and protection of workers and participants;
3.grievance procedures and judicial review;
4.nondiscrimination;
5.allocation of funds to local areas;
6.eligibility of providers or participants;
7.the establishment and functions of local areas and local boards; and
8.procedures for the review and approval of plans.

Requirements under sections 8 -10 of the Wagner-Peyser Act relating to the following may not be waived:

1.services to unemployment insurance claimants and veterans; and
2.universal access to basic labor exchange services without cost to job seekers.

We are very interested in working with States to use the statutory authority to make further improvements in the workforce investment system. To this end, we want the States to know that we will actively consider specific requests for waivers to remove both programmatic and administrative barriers: that will result in improved services and outcomes; that will assist the State and its local service delivery structure in implementing workforce delivery system improvements; or that will remove requirements, either program or administrative, that do not add value to the organization or to the delivery of quality services. The DOL Employment and Training Regional Administrators are available to discuss the provisions of the statute that may fall within the above cited exclusions.

We are not authorized to waive other legislation which extends beyond the authority provided in Public Law 105-220, such as, non-WIA regulations, or Office of Management and Budget Circulars. Therefore, should a request be received for waivers which extend beyond the WIA general waiver authority, it will not be granted. Additionally, we will not entertain requests to waive requirements which would be inconsistent with the above-referenced seven key principles of WIA, except in extremely unusual circumstances where the provision can be demonstrated as impeding reform. For instance, we will not grant a request to waive the requirement that training be provided through Individual Training Accounts (ITAs) since that would be inconsistent with the key principle of empowering individuals, through the use of ITAs for training at qualified institutions. However, in implementing the ITA requirements, a State or local area could encounter an element within the requirements that they feel impedes this reform principle and submit a waiver request, with a justification consistent with 20 CFR 661.420, which may be considered. In a similar manner, we cannot entertain requests for retroactive changes in program requirements.

6. Policy. In developing waiver requests, States should take into consideration that we will not grant waivers which result in the commingling of programmatic funds or which undermine accountability, as discussed below. In addition to the exclusions set forth in section 5 of this TEGL, the following significant policy considerations will affect the our decision on granting waivers.

a. Prohibition on Commingling of Funds. As under JTPA, we cannot approve waivers that would result in the commingling of separately appropriated funds. However, the issue of commingling of funds is, in part, addressed in the WIA legislation. The new legislation provides a limited Acommingling@ of funds by permitting an amount of up to 15-percent of a State's
Title-I formula allotted funds for services to youth, adults and dislocated workers to be reserved by the Governor for Statewide workforce activities. Such reserved funds may be combined and spent on Statewide employment and training activities, for adults and dislocated workers, and statewide youth activities, without regard for the funding source of the reserved funds. Similarly, Title I funds available to a local area for administration (10-percent of each funding stream allocation) may be combined and used for allowable administrative costs of any local workforce investment activities for youth, adults and dislocated workers at WIA sections 129(c) and 134(d) and(e), respectively, without regard to the original funding source. However, WIA does not directly, or indirectly through these provisions, authorize the commingling of Title I within-State allocated funds to local workforce investment areas from separate sources for programmatic services to youth, adults and dislocated workers.

Consistent with general appropriations law (31 U.S.C. 1301 (a)), which requires that appropriations be applied only to the objects for which the appropriations were made unless the law otherwise provides, the funds available to local areas for services to youth, adults and dislocated workers still have to be accounted for separately. In this case, the waiver provisions do not provide authority to merge (as opposed to transfer) program funds. This does not affect a local area's ability to transfer up to 20 percent of funds available for adult and dislocated workers programs between these programs, as provided for at WIA section 133(b)(4) and 20 CFR 667.140, but once transferred the funds must be accounted for under the program to which they have been transferred. Since eligibility is not waivable, for example, funds appropriated to provide assistance to dislocated workers under Title I would have to be expended for that purpose, even though the particular requirements relating to the form of such assistance could be waived. While we are committed to assisting States and local areas to minimize accounting and reporting burdens, the waiver authority does not permit us to relieve these entities from the responsibility of assuring that, except for the 15-percent State reserve and the amount available for local administration, WIA sections 128(b) and133(b), each appropriation for local programmatic services for youth, adults and dislocated workers, is only expended for its intended purpose.

b. Accountability. Consistent with the WIA key principles, to ensure programmatic and fiscal integrity, it is extremely important that there be both adequate oversight and complete, consistent reporting. Reporting must be sufficient to provide: a record of individual need; the programmatic and financial outcomes achieved reflecting, at a minimum, a core set of measures; and the resultant indication of success and improvement traceable from an established baseline, relying on publically-available quality data. Monitoring is key to ensuring that the goals and objectives of both the program and of any waivers granted will be achieved. While we may entertain waiver requests about reporting, we will not approve any such request that undermines our ability to account to the Congress for fundamental programmatic and financial outcomes or the ability to make basic comparisons in the performance among States. Also, we expect that State waiver requests will include plans to monitor performance under the waiver(s) in order to demonstrate to the Secretary that the anticipated goals and objectives described in the State plan have been achieved.

7.Waiver Elements.The submission of waiver requests is voluntary. Under 20 CFR 661.420, the State must submit a plan to the Secretary to improve the statewide workforce investment system which includes a minimum amount of information regarding the waiver(s) requested. This information is discussed in Item 9.b. below. The "Waiver Plan" is the State's request to waive certain statutory or regulatory requirements and serves as the Memorandum of Understanding between the State and the Secretary requiring that the State will meet, or ensure that local areas will meet, the agreed-upon outcomes and will implement appropriate measures to ensure accountability. Upon approval of the State's request for waiver, the "Waiver Plan" will be treated as an appendix to the State WIA Plan for title I of WIA, or the Wagner-Peyser Plan, as appropriate. Under paragraph 3 of the State's WIA Grant Agreement, or the Wagner-Peyser Plan Agreement, the Department and the States agree that the States will expend funds in accordance with the terms of the approved State Plan. This includes the terms of the waiver plan in the State Plan Appendix.

8. Duration and Applicability of Waiver. Unlike JTPA general and statutory waivers, the life of WIA general and statutory waivers is not limited to the fiscal year in which the request is approved. Because WIA is silent as to the length of a waiver, we believe it makes the most sense to approve waivers for a period that corresponds to the length of the requesting State's State WIA plan. Accordingly, the Secretary may grant waivers for a period of up to five years, however, the duration of a given waiver will be related to when the waiver is granted and the period of time remaining for which the State's plan is in effect.

9.Waiver Plan Submission

a.Development of Waiver Request. The Employment and Training Administration (ETA) Regional and Affiliate Offices are responsible for providing guidance and assistance to the States as they are developing their waiver requests, answering questions about the ETA waiver policy and advising the Assistant Secretary about approval of the waiver request(s). We expect that the Regional and Affiliate Offices, under the new ETA field configuration, will have continuing dialogue with their States during the developmental stages of waiver requests. These Offices are available to review and provide comments on draft proposals and provide technical assistance in preparation of the waiver plan submission. Upon completion of the Waiver Plan, the Governor will submit one copy of Plan to the appropriate Regional Administrator or Affiliate Office Administrator, along with the Plan in electronic form in order to reduce paperwork and to facilitate the automated processing of the States requests. States are asked to use either Microsoft WORD, Corel WordPerfect 6 or higher, or ASCII text for the electronic format to avoid conversion problems which might delay the processing of the States request.

b.Minimum Requirements. WIA requires the Secretary to make a determination of how a State's request to waive certain statutory and regulatory requirements would remove impediments and improve the State's or local areas's ability to achieve its goals. It also requires the State to include a summary description of the programmatic or administrative goals to be achieved in order to overcome the barrier.

The Governor must provide at least the minimum information set forth at 20 CFR 661.420(c), in order for the Secretary to make an informed decision on whether to approve the requested waiver. Where documentation (e.g., statistical information, reports, focus groups, customer surveys) is available, it should be provided to corroborate the statements made in the waiver request. In the absence of such data, we expect the State is expected to provide a substantive discussion and examples of barriers and proposed solutions which support the proposed removal of the requirements.

In accordance with 20 CFR 661.420(c), a Governor requesting general waivers must submit to the Secretary a plan to improve the Statewide workforce investment system that:

(1)   Identifies the statutory or regulatory requirements for which a waiver is requested and the goals that the State or local area, as appropriate, intends to achieve as a result of the waiver and how those goals relate to the Strategic Plan goals;
(2)  Describes the actions that the State or local area, as appropriate, has undertaken to remove State or local statutory or regulatory barriers;
(3)  Describes the goals of the waiver and the expected programmatic outcomes if the request is granted. These expected outcomes do not necessarily have to relate to expected incremental increases in the State's negotiated performance levels. We recognize that States may identify other quantitative and qualitative ways to measure the programmatic impact of a particular waiver or series of waivers. For example, improved cycle times for services to participants or in procurement actions. A proposed outcome may be specific to a single waiver or may be the expected result from a combination of related waivers. Our primary concern is that the proposed outcomes be demonstrable in some way. Therefore, for each waiver requested, the waiver plan must specify how success and/or progress on outcomes will be measured or determined, including how the baseline will be established and what data sources will be used.;
(4)  Describes the individuals affected by the waiver; and
(5)  Describes the processes used to:
(i)Monitor the progress in implementing the waiver;
(ii)Provide notice to any Local Board affected by the waiver;
(iii)Provide any Local Board affected by the waiver an opportunity to comment on the request; and
(iv) Ensure meaningful public comment, including comment by business and organized labor, on the waiver.

c. Public Comment Process. The State waiver plan must provide notice and an opportunity to comment to any Local Board affected by a waiver request, and must ensure meaningful public comment on the waiver requests, including comment by business and organized labor. We expect that the State will involve these groups, as well as local public officials, community-based organizations and other stakeholders, in the process of developing the waiver plan. The proposed waiver plan must be made reasonably available to the general public through such means as public hearings and local news media. Copies of all comments received on the requested waivers should be forwarded to the appropriate Regional or Affiliate Office with the waiver plan.

d.Time frame for Response. The Act provides for a decision on waiver requests within 90 days from the date of submission of a State's waiver plan. In general, we intend to respond to most waiver requests within 60 days from the date of receipt. Each waiver request will be evaluated on its own merits. Where necessary, we may seek further discussions or negotiations on a waiver request, either about changing certain aspects of the request or about the quality of the proposed improvements or outcomes. In order to provide a prompt response, we may respond with a partial approval in those instances where a request contains multiple parts and further information or clarification is required on one or more parts of the request.

In the spirit of a continuing partnership to improve the Workforce Investment System, we recognizes that the need for additional waivers may become apparent to the State during the implementation of its plan. Therefore, States may submit a request for an additional waiver as the need arises, following the process described in this TEGL.

10.Action Required. As described in paragraph 9. c., we expect States to fully involve local areas in the development of the waivers. We also request that States distribute the information on both the Federal process described in this TEGL and the State-established waiver process to their State staff (both WIA and ES), the SESA local offices, the local Boards, and other interested stakeholders throughout the State.

11. OMB Reporting Burden. Persons are not required to respond to this collection of information unless it displays a currently valid OMB control number. Public reporting of information is estimated to average 80 hours per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Send comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing this burden to the Office of IRM Policy, U.S. Department of Labor, N-1301, 200 Constitution Avenue, N.W., Washington, D.C. 20210 (Paperwork Reduction Project (1205-XXXX).

13. Inquiries and Comments. Requests for technical assistance or other inquiries should be directed to the Regional Office (see Attachment for list of Regional liaisons).

14.Attachment.List of Regional Liaisons on Waiver Requests

                                   Attachment

www.doleta.gov Search: Advanced Search ETA Home  >  waivers >  cfm >        U. S. Department of Labor Employment and Training Administration Washington, D.C. 20210 CLASSIFICATION JTPA/Waivers CORRESPONDENCE SYMBOL TD DATE TRAINING AND EMPLOYMENT GUIDANCE LETTER (TEGL) NO. TO :             ALL STATE WORKFORCE DEVELOPMENT LIAISONS                     ALL WAGNER-PEYSER ADMINISTERING AGENCIES                     ALL STATE WORKER ADJUSTMENT LIAISONS                     ALL ONE-STOP CAREER CENTER SYSTEM LEADS FROM :      EMILY STOVER DeROCCO                     Assistant Secretary

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