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Suzanne Simonetta Chief, Division of Legislation, OUI US Department of Labor Middle Class Tax Relief & Job Creation Act of 2012 authorizes states to drug test as a condition of eligibility UC applicants if: 1. Separated from work due to failure of or failure to take drug test. 2. 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. 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. Brief update on WIOA TEGL 7-16: Data Matching to Facilitate WIOA Performance Reporting 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.) 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 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 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. 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 361.38 DOL regulations at 20 CFR part 603 Options for making disclosures. 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”). 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. 11 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 statesupported education program, or to enforce or comply with federal legal requirements that relate to those education programs . 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 statesupported education programs & services in the state (i.e., state educational agency, LEA, or state postsecondary commission). 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. 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. 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 FERPAcompliant. 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. 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 361.38 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. 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.” 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 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 Only public postsecondary educational institutions that fit 603.2 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 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). 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 Solvency: 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 $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. 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. Claimants Rights: UIPL 01-16, Change 1 Drug Testing: UIPL 01-15, Change 1 Disclosure to OIG Reasonable Assurance Merit Staffing Work Search