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Comments On
Joint Rule for Unified and Combined State Plans
Workforce Innovation and Opportunity Act NPRMs
RIN 1205-AB74
The Adult and Community Learning Services Unit (ACLS) at the Department of Elementary and
Secondary Education in Massachusetts appreciates the opportunity to comment below on Title I
proposals in the WIOA regulations. Because the bill intertwines core program services, Part 1, the
introduction, speaks to key provisions throughout the bill. Following that introduction, Part 2 (page 3)
cites specific comments on Joint Rule for Unified and Combined State Plans.
PART 1: INTRODUCTION
ACLS is submitting comments on the Notice of Proposed Rulemaking (NPRM) RIN 1205-AB73
(Docket No. ETA- 2015-0001), implementing Title I and Title II of WIOA; NPRM RIN 1205-AB74
(Docket No. ETA 2015-0002), implementing the “Joint Rule for Unified and Combined State Plans,
Performance Accountability, and the One-Stop System Joint Provisions”; and NPRM RIN 1830-AA22
(Docket No. ED-2015-OCTAE-0003), implementing programs and activities authorized under Title II
of WIOA.
The State Directors of Adult Education supported the enactment of WIOA and worked closely with
Congress and the Administration to ensure that the legislation strengthened the American workforce by
making systemic improvements in the workforce system, promoted college and career readiness, and
improved the ability of all adults to earn a family sustaining wage, contribute to their communities, and
guide their families.
We appreciate that WIOA strives to create a workforce “system” but we believe that the “system”
needs to be sufficiently flexible to accommodate the varied situations in each state.
We appreciate that by including Adult Education as a core program in the unified state plan, and
requiring that those who administer Adult Education programs be represented on State and Local
Workforce Boards, this legislation recognizes the crucial role Adult Education plays in preparing those
aged 16 and above for college and career readiness and employment in the economy of the 21st
century.
We are pleased that Adult Education retains its own Title in WIOA. This should send an important
signal to our core partners as well as administrators, practitioners of adult education, students in adult
education programs, and employers that Adult Education is a critical partner in our job creation efforts.
We are submitting comments on Title I, Title II, and on the proposed regulations regarding unified and
combined state plans and performance accountability to the Departments of Education and Labor.
We also approve of the bill’s emphasis on college and career readiness. Getting a job in today’s
economy requires more than literacy and numeracy. The Workforce Innovation and Opportunity Act
wisely recognizes the Adult Education field as one whose goal is to produce a workforce that is more
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productive, creative, and produces better problem solvers than any other on the planet. We applaud
your strengthening the connections between Titles I and II and its recognition of distance learning and
technology as ways to reach even more students.
We strongly support the fact that the proposed regulations recognize the intent of Congress to
“encourage local adult education programs to serve all low-skilled adults” (Proposed 677.155 (a)(1)(v),
Federal Register page 20586, Vol.80 No. 73, Thursday, April 16, 2015) and believe that the
measurable skill gains indicator will help to achieve that goal.
We propose that the performance targets for this indicator be set at the level of measurable skill gain
rather than at the level completed.
We also support the concept of Adult Training Services, provided with Title I funds, to help those who
are low-income, recipients of public assistance, or are basic skills deficient to help them on a pathway
to the middle class. We also support the focus on training incumbent workers.
We understand the desire to gather wage record information for purposes of performance
accountability (Proposed 677.175) and appreciate that collecting participant Social Security Numbers
and matching them with quarterly wage rate data is effective. We note, however, that several states do
not allow Adult Education programs to collect Social Security Numbers and support the language that
states act consistent “with state law” to measure State and local progress on the performance
accountability measures.” We note that there are other data matching mechanisms by which to track
employment outcomes.
We also strongly support the proposal that that for Title I of WIOA the Department does not consider
providers of Adult Education under Title II to be a school. This clarification will help to ensure that
out-of-school youth get the training services they need through Title I in collaboration with the
education services they need through Title II.
With regard to representation of Adult Education on the State Workforce Board, we believe it is
important that the Regulations make it clear that there can be no dual representation and that the
administrator responsible for each of the four core programs have a seat on the Board. Too often in the
past, a “dual representative” was not sufficiently familiar with Adult Education policies and potential
to represent the contributions that Adult Education could make to the workforce system. We believe
that the intent of the Statement of Managers that “It is essential for adult educators to work closely
with workforce development stakeholders in the State, including State and local workforce boards” is
best realized if dual representation is prohibited.
There are many places in the proposed regulations that require greater clarification. We also seek
clarification of the content standards for English Language Acquisition programs (Proposed 463.32).
We would like to see greater clarity of the definition of Integrated Education and Training (Proposed
463.35), more sensitivity to the differences between jails and prisons since jails (Proposed 463.60) do
not necessarily provide the opportunity to secure a postsecondary credential, and whether employment
while incarcerated qualifies as unsubsidized employment.
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We also seek clarification about the definition of interoperability (Proposed 676.115) and the timing of
the combined/ unified plan and the need to stage open competitions. We are concerned that our state
may have to issue notices of competition for funds before the plans have been approved and we ask
that the Departments provide an additional transition year to the ABE system so the procurement
process for the ABE programs can be fully aligned with the completion of the state and local plans and
allow for a smooth transition from WIA to WIOA.
We also would like the Departments to make clear that Title I funds can support Title II as the
definition of “Training” (WIOA Section 134 (c)(3) includes “ (x) adult education and literacy
activities, including activities of English language acquisition and integrated education and training
programs,” when they are provided concurrently and in combination with other training services.
We urge the Departments to provide such clarification as expeditiously as possible so that the planning
processes in the states can proceed efficiently.
While funding for WIOA is not a regulatory issue, we would be remiss if we did reiterate our concerns
that WIOA imposes new requirements and responsibilities on the new workforce system, in general,
and on Adult Education programs, in particular.
Nationally funding for Adult Education programs has declined by 25 percent in real terms since 2002.
We are serving only 60 percent of the number of students served in 2001 and only five percent of the
eligible students nationwide. We recognize that WIOA provides higher authorization levels each year
from fiscal year 2015 through fiscal year 2020, but even if fully funded, we would still be below the
level at which Adult Education was funded a decade ago.
The need for additional funding has never been greater. According to the recently released Program for
International Assessment of Adult Competencies (PIAAC) “the U.S. average on the literacy and
numeracy scales is mediocre at best ….” In fact, we are falling further behind. PIAAC reports that the
“U.S. average literacy score in 2012 [is] lower than in 1994. [The] U.S. average numeracy score in
2012 [is] lower than in 2003.”
America is losing its place as a world leader in education, and in fact is becoming less educated. We
need to do more and while collaboration and technology may help keep costs down, if the aspirations
embodied in WIOA are to be achieved, we need to invest more money in Adult Education.
We look forward to working with the Departments of Education and Labor to successfully implement
WIOA.
PART 2: THE JOINT TITLE COMMENTS
§676.115(a)(1) – Unified Plan—align standards with State ESEA standards.
Discussion: Most states have adopted the National Adult Education College and Career
Readiness Standards (CCRs) and will demonstrate in the state plan how they align with the
challenging ESEA standards.
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However, (1) there are no content standards for English Language Acquisition and (2) there is a
three year disconnect between states that are now adopting the CCRs and the completion of
assessment instruments to assess those standards; how do we measure performance on content
standards when there are no assessment instruments?
Recommendation: Provide a three-year transition period during which states are held
accountable based on the available assessments instruments.
§677.115 – Primary Indicators of Performance
Discussion: Throughout this section there are references to participants “exiting” the program.
Does “exit” mean a) exiting one of the core programs (e.g. adult education or rehabilitation
services) or b) exiting WIOA services?
Recommendation: Clarify whether “exit” means exiting one of the partner programs or
exiting the WIOA system services. Massachusetts ABE programs are in favor of program exit
with an option to conduct a follow up in addition to data matching to capture employment
related measures for ABE students. Because Massachusetts does not require social security
numbers to enroll in adult education programs, it is critical that alternative way to collect data
such as a follow-up is allowed in addition to data matching.
§677.115(a)(3) – Unified Plan—Interoperability of data systems
Discussion #1: There is a national data integration workgroup at the Federal level. Rather
than each state expending time and funds to create an interoperable system, it makes sense to
await the results of the national work. This issue is especially true for the small states that have
very limited resources.
Recommendation #1: Give the states the option to await the results of the national data
integration workgroup before creating their state interoperable system.
Discussion #2: In order to share participant data in some states, a release of information form
must be signed by the participant.
Recommendation #2: Via non-regulatory guidance, DOL should provide adult education with
the appropriate language needed for their release form.
Discussion #3: Today’s data technologies enable seamless linking of separately managed
databases. Further, very different state laws and regulations render a “one size fits all” approach
to managing data impossible. Federal regulations must focus on the end results of reporting and
not infringe on how agencies collect and manage their data. Further, the costs of building and
modifying interoperable data systems are well known and are not adequately covered by WIOA
funding provisions and appropriations. Hence, absent additional federal funding this represents
an unfunded mandate.
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Additionally, due to the variety in State data systems, regulations that attempt to accommodate
those differences are impractical. Ergo, the States could benefit from non-regulatory guidance
from the Federal agencies. That guidance should highlight existing solutions that run the
gamut from a) States where the partners actually have developed one shared data system, to b)
States that have designed a means for individual partner data systems to communicate with
each other (i.e. data transfers) to c) States that use proxy demographic data to match
participants.
Recommendation #3: Convey expectations for interoperability via non-regulatory guidance.
Allow states to meet this requirement by seamless linking of separately managed databases to
fulfill this requirement and allow states flexibility to meet this requirement (e.g. individual
partner data systems to communicate with each other such as data transfers).
§ 677.155(a)(1)(iii) Page 20586, Second Column (Top): "Proposed § 677.155(a)(1)(iii) implements
WIOA’s third statutory indicator found at sec.116(b)(2)(A)(i)(III) and measures participants’ median
earnings in the second quarter after exit. This indicator measures median earnings at the same time
frame as the first indicator measures the employment rate of participants."
Discussion: The description of this indicator is unclear in terms of what constitutes missing
data and how to handle missing data in the computation of the median. In concept, a median
represents the midpoint value of a dataset. Proposed § 677.155(a)(1)(iii) does not fully
describe what belongs to the dataset. Specifically, no explanation is made as to whether
participants whose earnings information is missing due to lack of a match with the wage record
data system should be treated as not belonging to the dataset or whether a value such as 0
should be imputed.
If the intent is to provide some basis toward understanding the possible economic benefits
related to the quality of employment obtainable following use of program services, imputations
of 0 or anything else can significantly impact the accuracy and hence, some of the possible
benefits for having this as a measure.
Recommendation: Provide guidance within the regulations as to how missing data should be
treated. Since the possibility of having received earnings for many exists but is simply
unknown and cannot be uncovered through data matching, we suggest that all participant
records not associated with matching information from the wage record system be excluded
from the dataset used to determine the median earnings.
§677.155(a)(1)(v) – measureable skill gains for low-skilled adults
Discussion #1: State adult education procedures seek to build comprehensive services at the
local level. However, there are often highly specialized applicants (e.g., English Language
Acquisition, adult secondary programs) that the state wishes to encourage.
Recommendation #1: We support the proposed language “Documented progress could
include such measures as…” Such language provides the state with the flexibility it needs to
address the needs of those most in need and hardest to serve.
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Discussion #2: Obtaining citizenship may be a goal for some English language learners who
enroll into adult education programs. Obtaining citizenship while in a program should count as
a measurable skill gain.
Recommendation #2: Include obtaining citizenship as another option under measurable skill
gains for students enrolled in ABE programs.
§677.155(a)(1)(v)(1) – educational functioning level as documented progress
Discussion: This proposed regulation of “at least one EFLs” risks not capturing the full impact
of adult education instruction. In high intensity programs especially, students may advance two
or more EFLs.
Recommendation: Amend this item to read “(1) the achievement of the EFLs of a
participant….”
§677.155(a)(1)(v)(3) – secondary or postsecondary transcript
Discussion #1: Twelve hours per semester is full time. Six hours per semester better reflects
the capability of adults who must also work full- or part-time to provide for their families. In
addition, adults entering spring semester would not be able to meet the full year’s requirement
of hours.
Recommendation #1: Amend this item to read “(3) a transcript or report card for either
secondary or post-secondary education who enroll a minimum of six hours per semester that
shows a participant is achieving the States unit’s policies for academic standards.”
Discussion #2: At the secondary level, completion of high school equivalency (HSE) subtest is
a significant measure of progress and shows a participant is achieving the State’s academic
standards. Clarify that the measure to document secondary progress is completion of a HSE
subtest.
Recommendation #2: Amend this item to read “(3) a transcript or report card for adult
secondary students reporting high school equivalency subtest(s) passed or a transcript for postsecondary students who enroll a minimum of six hours per semester. In each case, the
document shows a participant is achieving the States unit’s policies for academic standards.”
§677.155(a)(1)(v) – should targets be indicator or documented progress measure level
Discussion: The NPRM sought comment regarding whether targets should be indicator or
documented progress measure level.
Recommendation: We recommend indicator of skill gains.
§677.155 – quarterly wage records and performance accountability
Discussion: This section strongly encourages states to use social security numbers to match
wage records “consistent with State law.” Even though the provision requires the Secretary of
Labor to make arrangements to ensure that wage records of each State are available to any
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other state, at least one state (NH) has a state law forbidding education programs from
collecting SSNs. Others ask for SSNs but do not require them because participants have the
right to refuse to give their SSNs. Still other states philosophically want to serve all the
residents in their state, some of whom may not have SSNs. In addition,
Because our participants need to significantly upgrade their skills in order to obtain jobs with
family sustaining incomes, adult education has been very successful in enabling participants
obtain employment (http://georgewbushwhitehouse.archives.gov/omb/expectmore/summary/10000180.2006.html) and will continue to
do so.
Because, for the reasons stated above, it is not always possible to obtain an SSN for all
students, States should not be penalized on their performance reports. A reasonable solution
that benefits the participants, the States, and the Federal reporting is to not include students
without SSNs in the denominator for computing percentage for the performance target unless
some other process is used to match with UI data not using SSNs.
Recommendation a: Include in this section and the section related to computing performance
the option for not including participants from the denominator who do not provide an SSN and
for whom no other matching means are available.
Recommendation b: We urge the Department of Education to accept additional ways to track
employment outcomes for participants for whom record matching is not a viable solution.
Accept follow up such as valid and reliable survey results to report outcomes on participants
for whom data matching is not an option.
Recommendation c: We urge the Department of Education to expeditiously issue additional
guidance on acceptable ways to count participants without social security numbers in
calculating credential attainment. Offer guidance on alternative ways to report outcomes.
Accept follow up such as valid and reliable survey results to report outcomes on participants
for whom data matching is not an option.
§677.155 – quarterly wage records and performance accountability
Discussion: In PY 2012-2013, 502,644 of the 1,707,926 (29%) of AEFLA participants were
“not in the labor force.” (http://www.ncsdae.org/BlueBook_20140624.pdf) These adults who
are “not working and not looking for work” include parents staying home with children, senior
citizens, persons in correctional facilities and institutionalized adults, disabled adults in
subsidized employment and others. It is essential that adult education programs continue to
serve populations seeking educational services for purposes other than employment (e.g.
learning English in order to support children or grandchildren at school, being able to speak
English to navigate systems, pursuing a goal of high school equivalency credential late in life,
etc).
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All adult education benefits participants once they decide to enter the workforce. However, it
is impractical to impose the goal of employment on adults who consider themselves not in the
workforce.
Recommendation: Include in this section and the section related to computing performance
the option for not including participants who report that they are not working and are not
looking for work. Refusing to enroll such participants would create a significant public and
political backlash.
§678.715, §678.720, §678.730, §678.735, & §678.740 – Infrastructure costs
Discussion #1: Some States would prefer to provide the infrastructure costs at the state level
and avoid the sometimes dysfunctional negotiations at the local level. According to §678.415
the eligible state agency is the one-stop partner for each one-stop in the state. (DO YOU
AGREE?) Ergo, if the state is the one stop partner, states do not have to defer to their local
providers but can, if desired, negotiate the infrastructure costs at the state level.
Recommendation #1: Allow states to bypass the local infrastructure funding process and use
the State process.
Discussion #2: There are differences of interpretation on whether the Title II 1.5 percent cap
on funding One-stop infrastructure costs is calculated from the State Administration funds or
from the total adult education grant. Of course, if the calculation is of the total grant and the
funds must be taken from State administration which is limited in the law to 5 percent of the
grant, it would require 30 percent of State Administration funds severely limiting the State
offices ability to carry out the many provisions and expectations of WIOA core partners.
Small states at the base funding level face even more drastic impact. Wyoming, for example,
the 1.5% if calculated on the full AEFLA federal grant would equate to $45,000. The state
administration funds equal $85,000 leaving only $45,000 to administer the grant. Wyoming
would lose 47% of its state administration funds.
Recommendation #2: Clarify that the 1.5 percent is calculated on State Administration funds
(based on federal allocation to the state).
Discussion #3: At the local level, both cash and in-kind contributions to infrastructure cost can
be beneficial.
Recommendation #3: Clarify that contributions to infrastructure can be either cash or in-kind.
Discussion #4: In some areas, an adult education program falls into multiple WIB regions. It
is not fiscally practical for the local adult education program to provide 1.5% to each WIB.
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Recommendation #4: Clarify that the total a local program needs to provide for infrastructure
cost is a maximum of 1.5% of its administration funds (calculated on federal allocation to the
state).