Rules Clearinghouse No. CR 22-056 Proposed Final Draft September 13, 2022
ORDER OF THE WISCONSIN
DEPARTMENT OF WORKFORCE DEVELOPMENT
The Wisconsin Department of Workforce Development adopts the following order to repeal DWD 801.03 (5), (7), (14) and (20), 801.05 (1) (d) and (Note), (3) (a) and (b), (4) (a), (c), (j) and (k), 801.07 (3), 801.08 (4) and 801.09 (4); to renumber DWD 801.10 (1); to renumber and amend DWD 801.03 (10) and (18), 801.06 (3), 801.10 (intro.) and (2); to amend DWD 801.01, 801.02, 801.03 (1), (2), (8), (9), (12), (13), (15) and (Note), (21) and (22), 801.04 (1) and (2), 801.05 (1) (a) and (c), (2), (3) (c) and (d), (4) (intro.), (b), (h) and (i), (5) (a) and (b) (intro.) and 3. (6) (a), (b) and (d), 801.06 (2), (4) and (6) (c), 801.07 (1) and (2), 801.08 (intro.), (1), (2), (3), (5), (6) and (7), 801.09 (1) (intro.), (a) (intro.), (b) and (c), (2) (title) and (intro.) and (3), 801.10 (4), 801.11 (1), (2), (3) (intro.), (a) and (c) to (g), 801.12 (intro.), (3) and (4) and 801.13 (1) to (3); to repeal and recreate DWD 801.04 (title) and 801.05 (3) (title); and to create 801.03 (15g), (15r), (17m), (18) (c) and (20m), 801.05 (2) (Note) and (4) (im), (jm) and (km), 801.06 (3) (a) and (b), 801.09 (1) (d) and (2) (g) and (h) and 801.13 (4), relating to Wisconsin Fast Forward Workforce Training Grants.
The Governor approved the scope statement for this rule, SS 009-20, on March 20, 2020. The scope statement was published in register No. 771A4, on March 23, 2020. This rule was approved by the Governor on September 8, 2022. Analysis Prepared by the Department of Workforce Development
Statutes interpreted
Statutory authority
Explanation of statutory authority
Section 106.27 (2g) (a) 1., Stats. requires the Department of Workforce Development ("Department") to promulgate rules prescribing procedures and criteria for awarding grants under s. 106.27 (1), Stats. As originally enacted by 2013 Wisconsin Act 9, s. 106.27 (1), Stats., requires the Department to award grants to public and private organizations to develop and implement workforce training programs for unemployed workers, underemployed workers, and incumbent employees of businesses in this state. This grant program is known as the standard Wisconsin Fast Forward program. Section 106.27 (2g) (a) 3., Stats., requires grant recipients to make reports to the Department regarding expenditures, activities, and outcomes under the grants. Section 106.27 (2g) (a) 1., Stats., requires the Department to promulgate rules prescribing the information that must be contained in the reports. The Department adopted ch. DWD 801 to satisfy the above rule promulgation requirements. The legislature subsequently enacted other acts to authorize additional grants under s. 106.27 (1), Stats., and other statutes under a program known as the expanded Wisconsin Fast Forward Program. Of those acts, 2017 Wisconsin Act 59 and 2019 Wisconsin Act 9 authorized grants under s. 106.27 (1), Stats. As noted above, s. 106.27 (2g) (a) 1., Stats., requires the Department to promulgate rules prescribing procedures and criteria for awarding grants under s. 106.27 (1), Stats., and prescribing the information that must be included in reports about the grants. This proposed rule revises ch. DWD 801 to satisfy these rule promulgation requirements. Related statutes or rules
The Workforce Innovation and Opportunity Act (WIOA), Public Law 113-128.
Plain language analysis
This rule revises ch. DWD 801, which governs grants under the Wisconsin Fast Forward and expanded Wisconsin Fast Forward programs. The revisions include the following: Terminology. The rule defines "project" as a workforce training program that an applicant proposes to conduct under a grant. In addition, the rule defines "placement partner" as an employer, other than a grant applicant, that, upon completion of a project, makes certain commitments regarding hiring unemployed or underemployed workers or providing full-time employment, higher-level employment, or wage increases to incumbent employees. The rule also defines "trainee" as an individual who receives workforce training under a project. The rule revises the chapter to consistently refer to all of the foregoing terms.
Applications for grants. As under current ch. DWD 801, the rule requires the Department to solicit applications for grants by publishing a Grant Program Announcement ("GPA"). The rule requires a GPA to specify the outcomes that grantees must achieve and any matching funds that the Department requires from grantees pursuant to its statutory authority. Like current ch. DWD 801, the rule allows certain public and governmental entities, including tribal governing bodies, to apply for grants, but refers to those entities as "public organizations" instead of "public agencies." Also like current ch. DWD 801, the rule allows a private organization, which is defined as a private for−profit or non−profit business or service provider, to apply for grants. The rule also allows a consortium of placement partners to apply for a grant, instead of a coalition or partnership of entities that is allowed to apply under current ch. DWD 801. However, a lead public or private organization must serve as the applicant for a consortium and the lead public or private organization, instead of the placement partners, must comply with the requirements that apply to grantees. The rule makes certain changes to the contents of an application. The rule eliminates requirements for applications to include an application summary sheet and checklist, which are duplicative of other application requirements. The rule also eliminates a requirement for an application to include documentation verifying compliance with state and federal lobbying laws. This requirement is not necessary because federal lobbying laws do not apply to this state-funded grant program. The requirement is also not necessary because current DWD ch. 801 prohibits using grant funds for lobbying purposes and the rule does not affect that prohibition. The rule also affects applications by specifying the information that must be included in the narrative description of the project that is required under current ch. DWD 801. In addition, the rule requires an application for a consortium of placement partners to identify the placement partners. The rule also eliminates a requirement for written documentation of agreements with partners and requires instead letters of commitment from placement partners, as well as from organizations that will provide matching contributions to the project. The rule adds the following eligibility requirements for applying for grants: 1) applicants must be in compliance with applicable federal and state laws and regulations and 2) projects funded by grants must propose plans to achieve the outcomes specified in GPAs. The rule allows the Department to deny an application that fails to meet any eligibility requirements or to include the required contents. Like current ch. DWD 801, the rule provides that such a denial is not subject to administrative review. Department action on applications. The rule eliminates an evaluation committee that is authorized to evaluate applications and allows the department to invite persons to participate in evaluations. The rule adds cost-per-trainee as an additional factor the Department is allowed to consider in reviewing an application. The rule changes the Department's deadline regarding an application. Under current ch. DWD 801, the Department must notify an applicant about the Department's decision with 60 days of a grant application deadline. Under the rule, within that same deadline, the Department may either 1) notify the applicant about the Department's decision or 2) notify the applicant of the status of the application and the date by which the Department anticipates issuing a decision on the application. The rule also makes revisions that allow an applicant to request administrative review of, instead of appeal, an adverse decision regarding an application. These revisions more accurately reflect the Department's long-standing process when an applicant seeks review of an adverse decision. Matching contributions. As noted above, the rule requires a GPA to specify any matching contributions that the Department requires from grantees. The rule also specifies that match contributions must be from private or public funds, instead of from locally generated or federal revenues as required under current ch. DWD 801. As under the current chapter, the rule allows in-kind contributions to satisfy match contribution requirements, but the rule specifies that a grantee must provide the basis for valuing the in-kind contributions. The rule eliminates a limit on the percentage of match contributions that can be expended on instructional materials, software, and equipment. Use of grant funds. Current ch. DWD 801 allows grant funds to be used to purchase capital equipment if the Department gives its prior written approval. Because funding capital expenditures is not the purpose of the grant program, the rule prohibits using grant funds for purchasing capital equipment. The rule also prohibits using grant funds on pre-existing programs, as defined in the rule. In addition, the rule eliminates a prohibition on using grant funds to supplant existing employee wages and compensation. The prohibition is redundant because (a) current chapter DWD 801 prohibits using grant funds for trainee wages, stipends, or fringe benefits and (b) the rule prohibits using grant funds on pre-existing programs. The rule eliminates a statement that grant funds may be used to train persons who work less than full-time. The statement is unnecessary based on current ch. DWD 801's definition of "underemployed worker" and because current ch. DWD 801 does not otherwise prohibit using grant funds for that purpose. Currently, ch. DWD 801 allows the Department to limit administrative costs to no more than 5% of a project's total budget. The rule provides instead that the Department may limit the amount of grant funds that can be used for administrative costs to no more than 10% of the costs reimbursed under a grant. A similar limit applies for workforce investment activities that are funded under Title I of WIOA. The rule also revises the definition of "administrative costs." Other revisions. The rule also does the following:
— Eliminates requirements regarding the Department's ownership of instructional materials, software, and equipment developed under grants in order to allow the Department to determine the future use of products developed under grants as part of the grant agreement terms.
— Clarifies that a prohibition on a grantee receiving more than $400,000 annually in grants does not apply to a grantee who serves as an applicant for a consortium of placement partners.
Summary of, and comparison with, existing or proposed federal regulations
WIOA provides funding for employment and training programs. With the approval of the Council on Workforce Investment, the Department provides grant allocations to 11 regional workforce development boards, which fund and supervise local programs. Programs for employment placement and retention, job training, and education-related training programs are delivered through Wisconsin Job Centers.
