40 TAC §801.2
The Texas Workforce Commission proposes an amendment to §801.2,
Waiver Requirements, concerning waivers that may be granted regarding service
delivery, board staffing and developmental services. The section clarifies
terms and circumstances in which waivers will be allowed. The section is
amended to streamline the process of obtaining a waiver and clearly defines
what a board must do to obtain a waiver.
The Texas Labor Code, as amended by Chapter 655, Acts of the 74th Legislature,
1995, requires the Commission to establish objective criteria for granting
waivers to local workforce development boards. The amendment deletes statutory
definitions from the rule as such information is repetitive and unnecessary,
and the amendment clarifies that operational functions, such as intake, eligibility
determination, assessment and referral, are included within the meaning of
"workforce training and services." The amendment also clarifies that the
Commission will issue a recommendation on submitted waiver requests to the
Texas Council on Workforce and Economic Competitiveness. Finally, the proposed
amendment replaces the requirement that certain documentation be submitted
with the request with a provision granting the Commission discretion in identifying
what documents may be needed to support a request for a waiver. This would
allow greater flexibility in submitting and reviewing requests for waivers.
Emily Zimmet, Deputy Director of Operational Services, has determined that
for the first five-year period the section is in effect, there will be minimal
fiscal implications for state or local government as a result of enforcing
or administering the section. There will be no additional costs to state
government as a result of enforcing or administering the rule. Reductions
in costs to the state will depend on program consolidation and local involvement
and cannot be estimated. Any costs to local governments choosing to operate
under a plan including waivers are entirely within the control of the local
government and cannot be estimated.
Ms. Zimmet, also has determined that for each year of the first five years
the section is in effect, the public benefit anticipated as a result of enforcing
the section will be improved coordination of and access to workforce training
and services programs at the local level. There will be no effect on small
businesses. There may be minimal economic impact as a result of this amendment,
but it is impossible to estimate at this time.
Written comments on the proposal may be submitted to Emily Zimmet, Operational
Services, Texas Workforce Commission Building, 101 East 15th Street, Room
144T, Austin, Texas 78778 (512) 463-6045. E-mail address: emily.zimmet@twc.state.tx.us
The amendment is proposed under Texas Labor Code, Title 4, §302.063,
as amended by Chapter 655, Acts of the 74th Legislature, 1995, which provides
the Texas Workforce Commission with the authority to develop objective criteria
for the granting of waivers under Texas Civil Statutes, Government Code,
§§2308.264, 2308.267, and 2308.312.
No other statute, article or code will be affected by this proposal.
Waivers
[Waiver Requirements].
(a)
Purpose of Rule. The Workforce and Economic Competitiveness
Act, §§2308.264, 2308.267, and 2308.312, Government Code, Vernon's
Texas Codes Annotated, sets forth prohibitions regarding service delivery,
board staffing, and developmental services. Only under exceptional circumstances
will waivers from such prohibitions be allowed. [The Commission's decision
on a waiver request shall be final.]
[(b)
Definitions. The following words and terms, when used
in this section, shall have the following meanings unless the context clearly
requires otherwise.
[(1)
Board--A local workforce development board as created
under the Workforce and Economic Competitiveness Act.
[(2)
Developmental services--Program services designed
to increase a participant's basic education and skill level, including adult
basic education courses, GED preparatory courses, adult literacy programs,
and occupational skills training.
[(3)
One-Stop services--Services provided at a Career
Development Center established by a board, including, but not limited to:
[(A)
access to labor market information in the workforce area;
[(B)
individual education, training, and employment referral
services;
[(C)
independent assessment of individual needs and the development
of an individual service strategy;
[(D)
centralized and continuous case management and counseling;
[(E)
support services, including, child care assistance, student
loans, and other forms of financial assistance required to participate in
and complete training;
[(F)
uniform eligibility determination of state and federal
benefit programs, including Food Stamp Employment and Training and unemployment
insurance benefits; and
[(G)
other employment services, such as job readiness seminars,
life skills programs, and job search seminars.
[(4)
Operational functions--Intake, eligibility determination,
assessment, and referral.
[(5)
Person--Any individual, sole proprietorship, partnership,
corporation or other legal entity.
[(6)
Workforce development--Includes workforce educational
programs and workforce training and services.
[(7)
Workforce education--Articulated career-path programs
and the constituent courses of those programs that lead to initial or continuing
licensing or certification or associate degree-level accreditation and that
are subject to:
[(A)
initial and ongoing state approval or regional or specialized
accreditation;
[(B)
a formal state evaluation that provides the basis for
program continuation or termination;
[(C)
state accountability and performance standards; and
[(D)
a regional or statewide documentation of the market demand
for labor according to employers' needs.
[(8)
Workforce training and services--Training and
services programs that are not "workforce education."]
(b)
[(c)] Independent Service Delivery.
A board is prohibited from directly providing workforce training and services including operational functions normally associated with
such services such as intake, eligibility determination, assessment, and
referral unless a waiver is obtained.
[A board is prohibited from
directly providing operational functions.]
(c)
[(d)] Separate Staffing.
The board's staff must be employed separately and independently of any person
that provides workforce training and services, as described in subsection
(b) of this section, unless the board arranges for independent evaluation
of any other workforce services provided by the staffing organization and
obtains a waiver.
[A board may employ professional, technical and
support staff to carry out its strategic planning, oversight, and evaluation
functions. The staff employed by the board must be employed separately and
independently of any person that provides workforce training and services.
The independent nature of the board's staff shall be ensured through employment
policies or contractual provisions.]
(d)
[(e)] Developmental Services. A person
who provides "one-stop" services at a Career Development Center may not also
provide developmental services
unless a waiver is
obtained
. [Persons seeking developmental services must be referred
to the full range of services available in the region and must not be unduly
influenced to participate in any training services made available by a particular
provider.]
(e)
[(f)] Requesting a Waiver . [of the
Requirements.]
(1)
Waiver requests should be submitted
to the Commission and contain detailed justification as specified in the
respective statutes. The Commission will forward a recommendation to the
Texas Council on Workforce and Economic Competitiveness for a determination.
[The board may submit its written request for a waiver under subsection
(c), (d), or (e) of this section to the Commission at any time in the board's
planning process, including at the time of submission of the strategic plan.]
(2)
In recommending action on such
requests, the Commission will apply only the criteria specified in the respective
statutes.
[A request for a waiver of any of the requirements under
subsection (c), (d), or (e) of this section must contain the following:
[(A)
a detailed justification for the waiver, including, but
not limited to:
[(i)
cost-effectiveness;
[(ii)
prior experience;
[(iii)
geographic and budgetary considerations;
[(iv)
availability of qualified applicants; and
[(v)
a detailed proposal for the provision of such services
should a waiver be granted.
[(B)
Documentation of the process used to solicit proposals
for the provision of necessary services, including, but not limited to:
[(i)
the process used to notify the public and interested parties
of the solicitation of proposals for the provision of necessary services;
[(ii)
details regarding any proposals or inquiries received
as a result of public notice and solicitation for proposals, including responses
given to any inquiries received;
[(iii)
criteria used to evaluate any proposals received; and
[(iv)
methodology used to determine the lack of any existing
qualified alternative.]
(3)
The Commission may require a board to submit documentation as outlined in
the Texas Workforce Planning Guidelines and/or Workforce Development Letters
to support its waiver request.
(f)
[(g)] Duration of Waiver.
(1)
A waiver may be granted for a period less than, but not
to exceed, the effective term of an approved plan and budget.
(2)
A waiver may be conditioned upon the board's completion
of measures taken to eliminate the need for a waiver.
[(h)
Changed Circumstances. If the Commission becomes aware
of a change in circumstances materially affecting its decision to grant a
waiver, the Commission may review its decision and require the board to submit
information regarding the continued need for the waiver.]
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Issued in Austin, Texas, on January 21, 1997.
TRD-9700950
Esther L. Hajdar
Director of Legal Services
Texas Workforce Commission
Earliest possible date of adoption: March 3, 1997
For further information, please call: (512) 936-0469