No. 42693 (Amendment): Rule R986-600. Workforce Innovation and Opportunity Act

(Amendment)

DAR File No.: 42693
Filed: 03/15/2018 01:12:22 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

The purpose of this amendment is to formalize and clarify eligibility requirements, initial reporting requirements, and enforcement mechanisms for the Utah Eligible Training Provider List (ETPL), and to make technical and grammatical changes.

Summary of the rule or change:

Under the Training and Workforce Improvement Act, Section 35A-5-101 et seq., the Department of Workforce Services (Department) is granted authority to apply for retraining, community assistance, and technology transfer funds made available by the federal government. Under the same Act, the Department also has specific authority to contract with eligible education and training providers to implement the state workforce services plan. Federal funds for these purposes are made available to the states through Title I the federal Workforce Innovation and Opportunity Act (WIOA), 29 U.S.C. 3101 et seq., and its accompanying regulations, 20 CFR Part 677. In compliance with these authorities, the Department maintains the ETPL, which lists all training providers eligible to receive Title I funding for vocational and similar training programs within the state. The Department has determined that several aspects of existing Department policy and practice in relation to the ETPL program should be enacted in rule in order to have the force of law for enforcement purposes. Specifically, the proposed rule formalizes the initial and continuing eligibility criteria that were previously contained solely in the "terms and conditions" between the Department and each provider. This proposed rule amendment also formalizes the Department's existing positions regarding the requirement that ETPL funds wrongly or fraudulently paid to a provider must be repaid, and the application of ETPL standards to successor training providers and contractors and subcontractors of training providers. In addition, the proposed amendment formalizes the criteria and timeframes for suspension or disqualification from the ETPL as they exist in Department policy and in compliance with 20 CFR 677. Further, the proposed amendment clarifies that training provider appeals from Department decisions may be heard by Administrative Law Judges and reviewed by the Department as part of its general administrative review process for public assistance cases. Previously, such appeals were to be heard by the State Workforce Development Board or its designee; the Board had, as a matter of practice, always designated an Administrative Law Judge within the Department to hear these appeals. The proposed amendment clarifies that this will be the official procedure for such appeals going forward. The Department has authority for this rulemaking pursuant to Section 35A-1-104.

Statutory or constitutional authorization for this rule:

29 U.S.C. 3101 et seq.
Section 35A-1-104
Section 35A-5-101 et seq.
20 CFR 677

Anticipated cost or savings to:

the state budget:

No costs or savings are anticipated to the state budget because this proposed amendment codifies and clarifies existing Department policy, procedure, and practice and does not require any new expenditure of funds.

local governments:

No costs or savings are anticipated to local government because the ETPL program is a state-level program and the state does not require any local government entities to hold hearings or otherwise engage in enforcement efforts, and because this proposed amendment codifies and clarifies existing Department policy, procedure, and practice and does not require any new expenditure of funds.

small businesses:

No costs or savings are anticipated to small businesses because this proposed amendment codifies and clarifies existing Department policy, procedure, and practice and does not require training providers or others to comply with requirements beyond those already being enforced by the Department.

persons other than small businesses, businesses, or local governmental entities:

No costs or savings are anticipated to persons other than small businesses, businesses, or local government entities because this proposed amendment codifies and clarifies existing Department policy, procedure, and practice and does not require training providers or others to comply with requirements beyond those already being enforced by the Department.

Compliance costs for affected persons:

No compliance costs or savings are anticipated for affected persons because this proposed amendment codifies and clarifies existing Department policy, procedure, and practice and does not require training providers, or others, to comply with requirements beyond those already being enforced by the Department.

Comments by the department head on the fiscal impact the rule may have on businesses:

After conducting a thorough analysis, it was determined that this proposed amendment will not result in a fiscal impact to businesses.

Jon Pierpont, Executive Director

The full text of this rule may be inspected, during regular business hours, at the Office of Administrative Rules, or at:

Workforce Services
Employment Development
140 E 300 S
SALT LAKE CITY, UT 84111-2333

Direct questions regarding this rule to:

Nathan White at the above address, by phone at 801-526-9647, by FAX at , or by Internet E-mail at nwhite@utah.gov

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

05/01/2018

This rule may become effective on:

05/08/2018

Authorized by:

Jon Pierpont, Executive Director

RULE TEXT

Appendix 1: Regulatory Impact Summary Table*

Fiscal Costs

FY 2018

FY 2019

FY 2020

State Government

Local Government

Small Businesses

Non-Small Businesses

Other Person

Total Fiscal Costs:

Fiscal Benefits

State Government

Local Government

Small Businesses

Non-Small Businesses

Other Persons

Total Fiscal Benefits:

Net Fiscal Benefits:

*This table only includes fiscal impacts that could be measured. If there are inestimable fiscal impacts, they will not be included in this table. Inestimable impacts for State Government, Local Government, Small Businesses and Other Persons are described in the narrative. Inestimable impacts for Non - Small Businesses are described in Appendix 2.

Appendix 2: Regulatory Impact to Non - Small Businesses

The proposed rule is not expected to have any fiscal or non-fiscal impacts on non-small businesses.

R986. Workforce Services, Employment Development.

R986-600. Workforce Innovation and Opportunity Act.

R986-600-652. [~~Initial~~ ]Eligibility Requirements for Training Providers and Programs.

(1) Training providers must apply for a specific program/s, and be found eligible, to be included on the Utah Eligible Training Provider List (ETPL).

(2) The following training providers can apply to be included in the ETPL;

(a) post-secondary institutions,

(b) registered apprenticeship programs,

(d) providers of adult education and literacy activities including English as a Second Language.

(3) Training provider requirements.

(a) All training providers seeking initial eligibility must have been in business as a training provider and have provided training to students for at least two years.

(b) Training providers, with the exception of government entities and basic education providers, must be registered with the Utah Division of Consumer Protection as a Post-Secondary Proprietary School. The only acceptable reasons for exemption from registration as a post-secondary proprietary school are for those schools governed by an accrediting body which oversees program instruction.

(4) Training providers must apply for eligibility for each training program they wish to have included on the ETPL.

(5) Training programs are defined as one or more courses or classes, or a structured regimen that leads to;

(a) an industry recognized post-secondary credential,

(b) employment,

(d) a measurable skill gain toward credential or employment.

(6) Training programs can be delivered in-person, online or in a blended approach.

(a) Online training is only eligible if it;

(i) is part of a curriculum where lessons are assigned, completed and returned,

(ii) requires students to interact with instructors, and

(iii) requires students to take periodic tests.

(b) Self-directed online training that is not instructor-led is not eligible.

(7) Training programs must submit performance data[.] that include s data from at least one training class that has completed and/or graduated from the program and the students have been tracked for at least 3 months after completing the program. If a training program has not operated for at least three months after the first class has graduated, the provider must submit letters verifying the need for trained employees from at least three local businesses that hire employees that need the type of training offered.

(8) Out of state training providers that do not have a training location in Utah may apply to be on the Utah ETPL only if they maintain provider and program eligibility on the ETPL in the state where their main or corporate office is located.

(9) Utah may enter into reciprocal agreements with other states to utilize the ETPL from those states. The agreement allows Utah clients to select a training program from another state's ETPL.

(10) The Department will not pay for training costs that are incurred prior to the training program being found eligible.

(11) when applying and while on the ETPL, training providers must agree to abide by the Training Provider Terms and Conditions Agreement which is provided as part of the application process.

(12) A training provider shall not be eligible to be included on the ETPL if:

(a) The training provider was previously removed from the ETPL due to noncompliance with these rules or is a successor to a training provider that was previously removed from the ETPL due to noncompliance with these rules, and the removal period has not expired or the conditions for reinstatement have not been met;

(b) The training provider was previously removed from another state's ETPL due to noncompliance with that state's ETPL rules or is a successor to a provider that was previously removed from another state's ETPL due to noncompliance with that state's ETPL rules, and the training provider has not been reinstated to that state's ETPL;

(c) The training provider lacks the required accreditation, licensing, registration, and certification to operate any program the training provider seeks to operate;

(d) The training provider has lost its good standing status, or is a successor to a training provider that has lost its good standing status, with the Division of Consumer Protection; or

(e) The training provider owes an overpayment to the Department or is a successor to a training provider that owes an overpayment to the Department.

(13) Notwithstanding Subsection (12)(e) above, the Department may include on the ETPL a training provider that owes an overpayment to the Department if:

(a) The overpayment did not result from the training provider intentionally supplying inaccurate information or substantially violating Title I of WIOA or the WIOA regulations; and

(b) The training provider has entered into a payment plan approved by the Department and is current in making required payments on the overpayment.

(14) For purposes of these rules, the following definitions apply:

(a) "Acquire" means to come into possession or control of, or obtain the right to use, an asset by any legal means, including gift, lease, repossession, or purchase. For purposes of this section, "acquire" does not include a purchase of an asset through a bankruptcy proceeding if the court places restrictions on the transfer of liabilities to the purchaser.

(b) "Asset" means any property, tangible or intangible, that has value, including but not limited to the acquisition of a business or trade name, customers, accounts receivable, intellectual property rights, goodwill, employees, or an agreement by a predecessor not to compete.

(d) "Manage" means to have the right to control or direct the day-to-day educational or training operations of a training provider.

(e) "Substantially all" means ninety percent or more of the value of a training provider.

(f) "Successor" means a person or entity that acquires the business or substantially all of the assets of a current or former training provider, or that is owned, managed, or controlled by the same principal(s) as a current or former training provider.

R986-600-653. Applying for Initial Training Provider and Program Eligibility.

(1) Training providers must submit the following information for each program for which they are seeking eligibility:

(a) training provider contact information,

(b) training program description and requirements,

(d) license or accreditation, if applicable,

(e) equal opportunity grievance procedure,

(f) aggregate performance data for every graduating class in the last full school year for every student,

(g) a list of all contractors or subcontractors the training provider intends to utilize for any aspect of the program, together with contact information for each contractor or subcontractor,

(h) the cost of attendance for the program, including tuition, fees, and any other costs, and

([g]i) any other information, documentation and/or verification requested by the Department.

(2) The training provider will be notified once an eligibility decision is made. If an application is denied, the notification will include information on the appeals process as described in R986-600-659.

R986-600-654. Registered Apprenticeships.

(1) All U.S. Department of Labor (DOL) Registered Apprenticeships located in Utah are eligible to be included on the ETPL. In order to provide funding for classroom training, the registered apprenticeship sponsor must be listed on the ETPL.

(2) Registered apprenticeship program sponsors must request to be included on the list verbally, through email or hard copy.

(3) Registered apprenticeship sponsors must submit information on the sponsor, program and training provider. Registered apprenticeship sponsors are not required to submit performance standards.

(4) Any registered apprenticeship will be removed from the ETPL if it loses its registration voluntarily or involuntarily.

(5) If a registered apprenticeship program sponsor is determined to have provided inaccurate information or to have substantially violated any provision of WIOA, they will be removed from the ETPL.

R986-600-655. Informed Client Choice.

The ETPL contains information for a client to make an informed choice based on performance data, the connections the training has with in-demand occupations, and cost.

R986-600-656. Continued Eligibility Requirements for Training Providers and Programs.

(1) Training programs receive initial eligibility for up to one year. To remain on the ETPL, the training provider must complete an application for continued eligibility and submit it before the expiration of the last month of eligibility.

(2) Training providers must renew eligibility annually or more often as instructed by the Department.

(3) If a training provider already on the list adds a new program, it must apply for approval of that program. The renewal date for the new program will be coordinated with the provider's other program or programs so all programs for that provider renew at the same time.

(4) If any of the information provided in R986-600-653 changes, the provider must notify the Department.

(5) To remain eligible for the ETPL, training providers must continually comply with the following obligations:

(a) Provide services in an ethical, professional and timely manner;

(b) Not rely solely on funds from the Department to remain in business, which is defined as not having more than 20% of students funded by the Department at any one time;

(c) Not use the Department's logo, or market, advertise, or imply the existence of a relationship with the Department, without express written approval by the Department;

(e) Not recruit on Department premises without Department Manager or Director approval;

(f) Not use Department approval or prospective approval as a condition for accepting a student, reviewing a student's application, assessing a cost or fee to a student, or otherwise making any type of decision regarding a student's enrollment or standing in the training program;

(g) Acknowledge and accept responsibility for all actions or inaction of any contractor or subcontractor the training provider uses, including not charging students directly for any costs imposed by a contractor or subcontractor's failure to provide services or make payments to the training provider;

(h) Not contact Department employment counselors unless the contact is regarding an individual student in common and the student has signed a Department Release of Information form;

(i) Submit to and cooperate with all Department audits and requests for information, including site visits;

(j) Not expect or require a minimum number of Department referred customers;

(k) Follow all applicable laws to operate as a school, including having any required accreditation, licensing, registration, and certification;

(l) Respond to Department complaints and requests within 48 hours of receiving the complaint or request;

(m) Notify the Department within 10 days of any change to the services the training provider is providing, including but not limited to:

(i) Material changes in the coverage or availability of the courses or programs being offered;

(ii) Changes in the location(s) where courses or programs are being offered or held;

(iii) Changes in the cost of attendance, including changes in tuition, fees, or any other cost imposed or required by the training provider;

(iv) Changes in accreditation, approval, certification, or licensing, including the commencement of formal or informal action or investigation to potentially remove or change accreditation, approval, certification, or licensing;

(v) Changes in the identity or status of contractors or subcontractors being used;

(vi) Changes in the ownership, management, or control of the training provider; and

(vii) Changes to the provider's refund policy, grievance procedure, or limited English proficiency plan;

(n) Ensure that all physical facilities necessary for operation as a school are adequate for that purpose and are compliant with all applicable laws, including the Americans with Disabilities Act and related authorities;

(o) Abide by the Department's Equal Opportunity Clause and equal opportunity and nondiscrimination requirements contained in Section 188 of the Workforce Innovation and Opportunity Act, including allowing yearly Equal Opportunity monitoring by the Department;

(p) Post the Department's Equal Opportunity Notice;

(q) Notify the State of Utah Finance Division of any changes to the training provider's bank account or mailing information;

(r) Provide Department-approved students with progress and attendance reports upon request;

(s) Comply with all applicable consumer protection laws, including but not limited to the Utah Postsecondary Proprietary School Act, Utah Code Ann. Section 13-34-101 et seq., and the Utah Postsecondary School State Authorization Act, Utah Code Ann. Section 13-34a-101 et seq.;

(t) Remain in good standing with the Division of Consumer Protection;

(u) Report to the Department within 10 days any action or investigation by the Division of Consumer Protection of which the training provider becomes aware;

(v) Report to the Department within 10 days any adverse action or investigation against the training provider in any other state;

(w) Submit annual performance data on WIOA-funded students as required by the Department and according to deadlines set by the Department;

(x) Not report any false or inaccurate information to the Department; and

(y) Abide by the Training Provider Terms and Conditions Agreement.

(6) Contracted and subcontracted providers must meet the same requirements as a primary training provider.

R986-600-657. Applying for Continued Eligibility Training Provider and Program Eligibility.

(1) Training providers must certify that all the information previously provided for each program for which they are seeking continued eligibility is current and correct.

(2) As part of continued eligibility the provider must submit performance data by program according to the deadlines set by the Department, including aggregate data for all students participating in or attending ETPL-approved programs[~~for the last school year for every WIOA student enrolled in the program~~].

(3) The Department will also consider the provider's past compliance with the Training Provider Terms and Conditions Agreement when determining continued eligibility.

(4) Programs that do not meet the minimum standards or provide the required information by the renewal date will be removed from the ETPL. If a provider is unable to complete the renewal requirements, an extension may be granted if the delay is due to exceptional circumstances or circumstances that are beyond the provider's control. The request for an extension must be submitted 30 days before the renewal deadline or as soon as possible.

(5) Training provider s will be notified of the decision on continued eligibility. If an application is denied, the notification will include information on the appeals process as described in R986-600-659 .

R986-600-658. Training Provider Terms and Conditions, Noncompliance.

(1) Training providers must agree to comply with the Training Provider Terms and Conditions Agreement. If a training provider does not follow the Terms and Conditions Agreement, the provider and all of its programs will be removed from the ETPL.

(2) If a training provider reports false or inaccurate information during the initial or continued eligibility process or substantially violates a provision of Title I of WIOA or its implementing regulations, including Equal Opportunity (EO) regulations, the training provider and all of its programs will be removed from the ETPL. The Department may also do an onsite visit to ensure compliance with WIOA and EO regulations. Removal from the ETPL under this subsection shall be for a period of at least two years.

(3) If a provider has been removed from the ETPL the Department will not pay for any additional training costs for any current or future clients until the training provider is eligible to reapply for ETPL initial eligibility.

(4) If a training provider has been removed from the ETPL, they will be notified if they will be eligible to reapply for initial eligibility and when they can submit a new application.

(5) If a training provider or program fails to comply with these rules, the Department may:

(a) Remove the training provider or program from the ETPL for a set period of time, not to exceed two years;

(b) Remove the training provider or program from the ETPL until the training provider or program can establish compliance with these rules and any rehabilitative measures established by the Department; or

(6) Any removal from the ETPL under these rules applies to the training provider or program that is removed as well as any successor training provider or program.

(7) A training provider that receives Department funds during any period of noncompliance with these rules shall be liable to repay all Department funds received during the period of noncompliance. If the training provider's removal from the ETPL does not fall under Subsection (2) above, the Department may, in its discretion, suspend or waive all or part of an overpayment.

R986-600-659. Training Provider or Program [ ~~Right to~~ ]Appeals .

(1) A training provider or program may appeal a denial of eligibility, overpayment, removal from ETPL approved status, or other adverse action by submitting[~~If a Training Provider or Program is denied eligibility; or the training provider and/or program has been removed from the ETPL due to non-compliance, they have the right to appeal the decision.~~

~~(3) Training providers must provide~~] a written appeal to the Department within 30 days from the decision date.

(2) Appeal proceedings under this section are designated as informal proceedings for purposes of Utah Code Ann. Section 63G-4-202.

(3) Appeal hearings shall be conducted according to the procedures set forth in Rule R986-100-124 through R986-100-133, unless those procedures are incompatible with the nature of an ETPL hearing.

(4) Further appeals from the decision of an ALJ or hearing officer may be made as set forth in Rule R986-100-135.[~~The SWDB will review the appeal and make a final decision.~~]

(5) EO findings are reviewed by the Department executive director for a final decision.

(6) Training providers and programs will be notified of the final decision.

(7) Actions taken by the Department against a training provider or program shall remain in force during the pendency of an appeal unless the appeal results in the reversal of the Department action.

KEY: Workforce Innovation and Opportunity Act, [(]WIOA[)], SNAP

Date of Enactment or Last Substantive Amendment: [~~May 1, 2017~~]2018

Notice of Continuation: September 3, 2015

Authorizing, and Implemented or Interpreted Law: 35A-5