1. Emerging UI Issues Suzanne Simonetta
5/20/2018 8:07 AM
Emerging UI Issues
Suzanne Simonetta
Chief, Division of Legislation, OUI
US Department of Labor
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2. Drug Testing of UC Applicants
Middle Class Tax Relief & Job Creation Act of 2012 authorizes states to drug test as a condition of eligibility UC applicants if:
Separated from work due to failure of or failure to take drug test.
Only work suitable for an individual is in an occupation that regularly conducts drug testing, as specified by Secretary of Labor in regulation.
Final rule issued on 8/1/16.

3. Drug Testing of UC Applicants
Occupations that regularly conduct drug testing:
Required to carry firearm
In FAA regs (flight crew, air traffic controller, etc.)
In FMSA regs (commercial drivers)
In FRA regs (railroad operating crews)
In FTA regs (public transportation operators)
In PHMSA regs (pipeline operation & maintenance crews)
In USCG regs (crewmembers & maritime credential holders on commercial vessels.
Specifically identified in state or federal law requiring drug testing
No limitation to law in effect on date of NPRM.

4. Wage Records and WIOA Brief update on WIOA
TEGL 7-16: Data Matching to Facilitate WIOA Performance Reporting
The published versions in the Federal Register are the official Final rules.

5. WIOA Final Rules
Published in the Federal Register (FR) on August 19, 2016:
DOL only rule
Joint rule (ED and DOL) – Unified & Combined State Plans, Performance Accountability, & the One-Stop System Joint Provisions
ED only rules (Voc Rehab, Adult Ed, etc.)
The published versions in the Federal Register are the official Final rules.

6. Key Goals of WIOA
Help job seekers access employment, education, training and support services
Match employers with skilled workers
Customer-focused one-stop delivery system
Enhanced & increased coordination among key employment, education, & training programs
WIOA reaffirms the role of the customer-focused one-stop delivery system, a cornerstone of the publicly-funded workforce development system, and mandates enhanced and increased coordination among several key employment, education, and training programs.
WIOA is designed to help job seekers access employment, education, training, and support services to succeed in the labor market, and to match employers with the skilled workers they need to compete in the global economy.

7. Key Goals of WIOA
Focus on performance accountability for the WIOA core programs:
DOL ES, Adult, dislocated worker & youth programs
Adult Ed, Voc Rehab, etc.
To achieve this goal, greater emphasis on performance reporting & evaluations
Use of intra and interstate quarterly wage records for performance accountability
WIOA reaffirms the role of the customer-focused one-stop delivery system, a cornerstone of the publicly-funded workforce development system, and mandates enhanced and increased coordination among several key employment, education, and training programs.
WIOA is designed to help job seekers access employment, education, training, and support services to succeed in the labor market, and to match employers with the skilled workers they need to compete in the global economy.

8. Challenges for Performance Accountability
Complex issues regarding privacy and confidentiality.
Multiple Federal laws must be considered when conducting data matching for WIOA reporting performance.
States may choose to provide greater privacy and confidentiality protections.
Every program in every state organized differently.
Matching records to meet performance accountability, reporting, and evaluation requirements raises complex issues regarding privacy and confidentiality.
Multiple Federal laws must be considered when conducting data matching for WIOA reporting performance.
there may be other State or Federal laws that require matching education records with UC wage records for the purpose of evaluating and reporting information for Federal or State supported education programs. This guidance does not address these other laws or regulations; however, the privacy and confidentiality provisions and the options discussed in this guidance may be relevant or helpful to other programs that operate under such laws and regulations. For example, the Carl D. Perkins Career and Technical Education Act of 2006 (P.L ) requires States to report on core measures of performance that include indicators that may necessitate matching PII from education records with UC wage records.
States may choose to provide greater privacy and confidentiality protections to education, UC wage records, or VR records through State law, regulation, or policy than Federal laws require.

9. TEGL 7-16
Overview of the federal laws and regulations governing the use and disclosure of records.
Family Educational Rights and Privacy Act (FERPA) at 34 CFR 99
VR regulations at 34 CFR
DOL regulations at 20 CFR part 603
Options for making disclosures.
Matching records to meet performance accountability, reporting, and evaluation requirements raises complex issues regarding privacy and confidentiality.
Multiple Federal laws must be considered when conducting data matching for WIOA reporting performance.
there may be other State or Federal laws that require matching education records with UC wage records for the purpose of evaluating and reporting information for Federal or State supported education programs. This guidance does not address these other laws or regulations; however, the privacy and confidentiality provisions and the options discussed in this guidance may be relevant or helpful to other programs that operate under such laws and regulations. For example, the Carl D. Perkins Career and Technical Education Act of 2006 (P.L ) requires States to report on core measures of performance that include indicators that may necessitate matching PII from education records with UC wage records.
States may choose to provide greater privacy and confidentiality protections to education, UC wage records, or VR records through State law, regulation, or policy than Federal laws require.

10. Family Educational Rights and Privacy Act (FERPA)
Federal privacy law that affords parents the right to:
have access to their children’s education records,
seek to have the records amended, and
consent to the disclosure of personally identifiable information from education records, except as provided by law.
When a student turns 18 years old, or enters a postsecondary institution at any age, the rights under FERPA transfer from the parents to the student (“eligible student”).
Matching records to meet performance accountability, reporting, and evaluation requirements raises complex issues regarding privacy and confidentiality.
Multiple Federal laws must be considered when conducting data matching for WIOA reporting performance.
there may be other State or Federal laws that require matching education records with UC wage records for the purpose of evaluating and reporting information for Federal or State supported education programs. This guidance does not address these other laws or regulations; however, the privacy and confidentiality provisions and the options discussed in this guidance may be relevant or helpful to other programs that operate under such laws and regulations. For example, the Carl D. Perkins Career and Technical Education Act of 2006 (P.L ) requires States to report on core measures of performance that include indicators that may necessitate matching PII from education records with UC wage records.
States may choose to provide greater privacy and confidentiality protections to education, UC wage records, or VR records through State law, regulation, or policy than Federal laws require.

11. Disclosing Education Records
A parent or eligible student shall provide a signed and dated written consent before a school may disclose education records, except for specific exceptions.
The exception to consent most applicable to matching education records and UC wage records is FERPA’s audit or evaluation exception.
The general rule under FERPA is that a parent or eligible student must provide a signed and dated written consent before an educational agency or institution discloses PII from the student’s education records.

12. Audit or Evaluation Exception
Permits disclosure of PII from education records without consent to authorized representatives of state or local educational authorities.
PII from education records must be used to audit or evaluate a federal- or state-supported education program, or to enforce or comply with federal legal requirements that relate to those education programs .
the exception to consent in FERPA, that may be used to permit the matching of PII from education records and wage records is FERPA’s audit or evaluation exception
The State or local educational authority disclosing the PII from education records is specifically required to use reasonable methods to ensure to the greatest extent practicable that its designated authorized representative complies with FERPA and its regulations.

13. State or Local Educational Authority
Each state designates one or more agencies or entities responsible for & authorized under local, state, or federal law to supervise, plan, coordinate, advise, audit, or evaluate elementary, secondary, or postsecondary federal- or state-supported education programs & services in the state (i.e., state educational agency, LEA, or state postsecondary commission).
Each State designates one or more agencies or entities that are responsible for and authorized under local, State, or Federal law to supervise, plan, coordinate, advise, audit, or evaluate elementary, secondary, or postsecondary Federal- or State-supported education programs and services in the State. FERPA refers to such an agency or entity as a “State or local educational authority.”
ED generally has interpreted the term to include a State educational agency, an LEA, and a State postsecondary commission. However, State agencies other than a State educational agency or State postsecondary commission might, depending on State law, also be a “State educational authority” under FERPA.
This is true for AEFLA programs where the State agency responsible for the administration and supervision of AEFLA programs may be the State educational agency, State postsecondary commission, workforce commission or agency, the State’s department of labor, or any other State entity as determined by the State.
Further, ED generally considers an LEA to be both an educational agency and a local educational authority under FERPA.

14. State or Local Educational Authority
State agencies other than a state educational agency or state postsecondary commission might, depending on state law, also be a “state educational authority” under FERPA.
LEA is generally considered to be both an educational agency and a local educational authority.
Each State designates one or more agencies or entities that are responsible for and authorized under local, State, or Federal law to supervise, plan, coordinate, advise, audit, or evaluate elementary, secondary, or postsecondary Federal- or State-supported education programs and services in the State. FERPA refers to such an agency or entity as a “State or local educational authority.”
ED generally has interpreted the term to include a State educational agency, an LEA, and a State postsecondary commission. However, State agencies other than a State educational agency or State postsecondary commission might, depending on State law, also be a “State educational authority” under FERPA.
This is true for AEFLA programs where the State agency responsible for the administration and supervision of AEFLA programs may be the State educational agency, State postsecondary commission, workforce commission or agency, the State’s department of labor, or any other State entity as determined by the State.
Further, ED generally considers an LEA to be both an educational agency and a local educational authority under FERPA.

15. Authorized Representative
State or local educational authority may designate an individual or entity, including a contractor or other government agency, to be its authorized representative.
State or local educational authority may then disclose PII from education records to its authorized representative or permit its authorized representative to obtain access to PII from education records, without the prior written consent of the parent or eligible student.
FERPA’s audit or evaluation exception permits a State or local educational authority to designate an individual or entity, including a contractor or other government agency, to be its authorized representative.
The State or local educational authority may then disclose PII from education records to its authorized representative or permit its authorized representative to obtain access to PII from education records, without the prior written consent of the parent or eligible student, when necessary for an audit or evaluation of a Federal- or State-supported education program, or in connection with the enforcement of any Federal legal requirements that relate to these programs.
For example, the State educational authority may designate agencies such as a State UC agency to serve as its authorized representative for the purpose of conducting an audit or evaluation of a Federal- or State-supported education program.

16. Conditions Governing Disclosures to Authorized Representatives
Used to audit or evaluate a federal- or state-supported education program, or to enforce federal legal requirements that relate to those education programs.
Use reasonable methods to ensure to greatest extent practicable that its authorized representative is FERPA-compliant.
Must be a written agreement between state or local educational authority and its authorized representative.
Educational authority must authorize any further disclosure to be made and ensure that all other FERPA requirements are met.
The PII from education records must only be used by the authorized representative to audit or evaluate a Federal- or State-supported education program, or to enforce Federal legal requirements that relate to those education programs.
The State or local educational authority disclosing the PII from education records is specifically required to use reasonable methods to ensure to the greatest extent practicable that its authorized representative is FERPA-compliant.
If the State or local educational authority’s authorized representative is not an employee of the State or local educational authority, then there must be a written agreement between the State or local educational authority disclosing the PII from education records and its authorized representative that includes the mandatory elements
Educational authority must authorize any further disclosure to be made and ensure that all other FERPA requirements have been satisfied, such as the recordation requirements.

17. Vocational Rehabilitation (VR) Provisions: 34 CFR 361.38
Govern protection, use, & release of personal information held by VR agencies
VR agencies are not considered educational agencies or institutions under FERPA
Must develop policies & procedures to safeguard confidentiality of all personal information
No Federal requirement that VR agency obtain informed written consent from individual prior to releasing personal information for purposes directly related to administration of VR program, or for audit, evaluation, or research purposes
No specific VR content requirements for data exchange agreements; however, such agreements must be consistent with statutory & regulatory requirements of 34 CFR
Vocational Rehabilitation (VR) Provisions govern the protection, use, and release of personal information held by VR agencies.
VR agencies, which are not considered educational agencies or institutions under FERPA, must develop policies and procedures to safeguard the confidentiality of all personal information, and to inform applicants and recipients of services and, as appropriate, their representatives of the VR agency’s need to collect personal information and its policies.
There is no Federal requirement that a VR agency obtain informed written consent from the individual prior to releasing personal information for purposes directly related to the administration of the VR program, or for audit, evaluation, or research purposes when the audit, evaluation, or research are conducted only for purposes directly connected with the administration of the VR program or for purposes that would significantly improve the quality of life for applicants and recipients of services and only if in accordance with a written agreement.
However, if the final audit, evaluation, or research product will contain personal information, written consent is required.

18. UI Confidentiality & Disclosure Regulations: 20 CFR Part 603
For WIOA performance purposes, disclosure is not mandatory, though STRONGLY encouraged.
Permissive to disclose confidential UC info:
Based on informed consent
To public officials for use in performing official duties.
To agents or contractors of public officials.

19. Disclosure of Confidential UC Information to Public Officials
20 CFR 603.5(e): Permissible when authorized by state law
20 CFR 603.2(d)(1): defines “public official” as “an official, agency, or public entity within the executive branch of Federal, State, or local government who (or which) has responsibility for administering or enforcing a law, or an elected official in the Federal, State, or local government.”
In cases where there is not informed consent, disclosure of confidential UC information to a public official, and to his or her agents and contractors, for use in the performance of his or her official duties is permissible where authorized by State law. “Public official” is defined as “an official, agency, or public entity within the executive branch of Federal, State, or local government who (or which) has responsibility for administering or enforcing a law, or an elected official in the Federal, State, or local government.”  
The regulations also enumerate certain additional public officials who may access confidential State wage records needed for performance reporting.
The first part of the definition of public official requires that an executive branch entity must have responsibility for “administering or enforcing a law.”  Such entities would be considered to be administering a law if the purpose of matching education records with wage records is to report information that is required under Federal, State or local laws. 

20. Disclosure of Confidential UC Information to Public Officials
20 CFR 603.2(d)(2) - (5) definition includes:
Public postsecondary educational institutions which are part of the State's executive branch
Public postsecondary educational institutions which are independent of the State’s executive branch
Publicly governed, publicly funded community and technical colleges
Performance accountability and customer information agencies (PACIAs)
The chief elected official of a local Workforce Development Area
A State educational authority, agency, or institution, as those terms are used in FERPA, to the extent they are public entities
In cases where there is not informed consent, disclosure of confidential UC information to a public official, and to his or her agents and contractors, for use in the performance of his or her official duties is permissible where authorized by State law. “Public official” is defined as “an official, agency, or public entity within the executive branch of Federal, State, or local government who (or which) has responsibility for administering or enforcing a law, or an elected official in the Federal, State, or local government.”  
The regulations also enumerate certain additional public officials who may access confidential State wage records needed for performance reporting.
The first part of the definition of public official requires that an executive branch entity must have responsibility for “administering or enforcing a law.”  Such entities would be considered to be administering a law if the purpose of matching education records with wage records is to report information that is required under Federal, State or local laws. 

21. What Are “Official Duties?”
20 CFR 603.5(e)(1): administration or enforcement of law, or the execution of the official responsibilities of a federal, state, or local elected official
20 CFR 603.5(e)(2): includes use of confidential UC information for WIOA performance accountability purposes

22. What About Non-Public Service Providers?
Only public postsecondary educational institutions that fit definition of public official may receive confidential UC info
All other education service providers may receive only aggregate information, unless they obtain a written, signed informed consent for each individual whose information is being sought

23. Disclosures to Agents or Contractors of Public Officials
Permitted under 20 CFR 603.5(f).
Data sharing agreement must hold public official responsible for ensuring that its agent or contractor complies with all safeguards & security requirements
Agent or contractor may not redisclose the information except as permitted by 20 CFR 603.9(c).

24. Option 1: A State Educational Authority Discloses PII from Education Records to the State UC Agency as its Authorized Representative

25. Option 6: A State VR Agency Discloses Personal Information to the State UC Agency for Conducting an Audit or Evaluation of the VR Program

26. Option 7: Multiple State UC Agencies as Authorized Representatives

27. FY 2017 Budget Proposals
RESEA: All UCX & 1/3 most likely to exhaust UC
Integrity Act:
TOP technical fix
SIDES mandate
NDNH required for BPC; required penalties on employers that fail to report
Performance: DOL authority to mandate use of portion of admin grant for CAPs, and to provide awards/incentives
Requires use of P & I funds for UI admin with a portion for program integrity activities
Prisoner Update Processing System cross-match
Allow use of up to 5% of certain recoveries for integrity

28. FY 2017 Budget Proposals Solvency: Benefit Requirements:
Restore 0.2% FUTA surcharge
Increase TWB to $40,000 in 2018; index to inflation
Decrease effective FUTA rate to 0.167%
Minimum SUTA tax per employee of 0.175%
Apply FUTA credit reduction to augment state TF balances when AHCM less than 0.5 on 2 consec 1/1
Benefit Requirements:
At least 26 weeks of benefits
Alternative base period
Eligibility of part-time workers
VQ good cause includes family reasons

29. FY 2017 Budget Proposals $5 Billion UI Modernization Fund
Prerequisites:
Broader federal access to wage records
E-filing and/or increased penalties for employer non-reporting
Definition of misconduct that conforms to a DOL model
Must provide for 1 addition benefit expansion:
Expansion of approved training
Max WBA at least 2/3 state AWW
Improve eligibility for temporary workers
Must provide for 2 pro-work reforms:
Progressively more intense reemployment services
Improved reemployment services
Voluntary work-based program for UI claimants
Relocation assistance
Improved data systems/access for perf., research, evals.

30. FY 2017 Budget Proposals
Wage Insurance: 2 years up to $10,000 if earn less than $50,000.
STC
2 more years of reimbursements
2 more years to receive grants
50% federal funding when state triggered on EB EB
Modify to have 4 13-week tiers
TUR-based triggers: 6.5%, 7.5%, 8.5%, 9.5%
Factor in 3-month TUR & change in TUR in comparable 3-month period in last 2 years.

31. Guidance Coming Soon Claimants Rights: UIPL 01-16, Change 1
Drug Testing: UIPL 01-15, Change 1
Disclosure to OIG
Reasonable Assurance
Merit Staffing
Work Search

32. Questions?