WD Letter 27-12: Waiver of the Training Requirement under the by yT26M1

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									TEXAS WORKFORCE COMMISSION LETTER

                                                           ID/No:       WD 27-12
                                                           Date:        September 6, 2012
                                                           Keyword:     TAA; TWIST
                                                           Effective:   Immediately

To:            Local Workforce Development Board Executive Directors
               Commission Executive Offices
               Integrated Service Area Managers

From:          Reagan Miller, Director, Workforce Development Division

Subject:       Waiver of the Training Requirement under the Trade Adjustment
               Assistance Act


PURPOSE:
    To provide Local Workforce Development Boards (Boards) with information and
    guidance on granting a waiver of the training requirement (waiver) under the
    Trade Adjustment Assistance Act (TAA).

BACKGROUND:
    The purpose of the TAA program is to assist trade-affected workers to transition
    to suitable employment as quickly as possible. TAA makes a wide range of
    services and benefits available to workers who become unemployed because of
    the impact of international trade. TAA places an emphasis on reintegrating the
    trade-affected worker into suitable employment as quickly as possible. Where it
    is determined that the worker requires retraining services, TAA statutes,
    regulations, and guidance require that the worker be enrolled in training no later
    than his or her waiver/in-training deadline date, or in limited circumstances,
    granted a temporary waiver in order to maintain eligibility for Trade
    Readjustment Allowances (TRA).

        Under the varying provisions of TAA (2002, 2009, and 2011 laws), the waiver/in-
        training deadline date is determined by the later of the following events:

                                                        Waiver/In-Training Deadline Date
        Event                                           2011 & 2009 Law      2002 Law
        Petition Certification Date                        26 Weeks           8 Weeks
        Worker’s Most Recent Qualifying Separation         26 Weeks          16 Weeks
        Worker’s Notification of TAA Eligibility            60 Days        Not Available

        Workers certified under the1974 Trade Act provisions have passed their
        waiver/in-training deadline date and, therefore, are not addressed in this WD
        Letter.
PROCEDURES:
    Boards must be aware of the following:                                                        NLF

               The waiver/in-training deadline date is provided in the Notice of Potential
                Trade Adjustment Assistance (TAA) Eligibility (Form BT-1), available on the
                Intranet1 at https://intra.twc.state.tx.us/intranet/uir_uiman/html/uiman_sec33-
                02.html. TWC mails Form BT-1 to a worker’s address of record. The
                deadline date also is displayed in The Workforce Information System of
                Texas (TWIST) on the customer’s TAA Program Detail, Eligibility Criteria
                tab.

               If trade-affected workers are not enrolled in training by their waiver/in-
                training deadline date, or have not secured a waiver by the deadline date, the
                customer will permanently lose access to current and future TRA benefits.

               If trade-affected workers cannot be enrolled in training by their waiver/in-
                training deadline date, a waiver can be granted if the customer meets one of
                the waiver criteria provided for under the trade law governing their
                certification. A waiver only applies to the Basic TRA eligibility period, which
                typically is the 26 weeks following the payment of the customer’s initial 26
                weeks of state unemployment insurance (UI).

           Assessment and Support of Determination
           Prior to issuance of a waiver, Boards must ensure that Workforce Solutions Office        NLF
           staff:
            assesses the trade-affected worker’s skills, circumstances, and the labor
               market(s) where the worker is willing to work; and
            completes the first three sections of the worker’s TAA Reemployment and
               Training Plan (Form REP-1), available on the Intranet at
               http://intra.twc.state.tx.us/intranet/gl/html/trade_forms.html.

           Waiver Criteria
           Boards must ensure that Workforce Solutions Office staff waives the TAA                  NLF
           training requirement only for one of the following allowable reasons:
                                                               2002 & 2009
                     Waiver Reason                             Amendments    2011 TAAEA
                 1. Recall                                      Available    Not Available
                 2. Marketable Skills                           Available    Not Available
                 3. Retirement                                  Available    Not Available
                 4. Health                                      Available      Available
                 5. Enrollment Unavailable                      Available      Available
                 6. Training Not Available                      Available      Available



1
    The Intranet is not available to the general public.


WD Letter 27-12                                            2
       1. Recall—The worker has been notified by the employer that the worker will be       NLF
          recalled by the affected company within six months. This recall notification
          from the employer must be in writing detailing a specific recall date and
          Boards must ensure that a copy is retained in the case file and documented in
          TWIST Counselor Notes.

       2. Marketable Skills—The worker possesses “marketable skills” for suitable           NLF
          employment, as determined by an initial assessment of the worker’s total job
          skills. Boards must be aware of the following:
           Marketable skills include all of the skills and requirements for
              employment in an occupation the worker is seeking and for which there is
              a reasonable expectation of employment within 90 days, within either the
              local commuting area or an area to which the worker is willing to relocate;
              and
           Even if the worker has a postsecondary degree or higher, the worker is
              considered to have marketable skills for purposes of the waiver request
              only where the degree affords the worker a reasonable expectation of
              employment.

        Note: Where a customer has been unemployed for more than 90 days, Boards            NLF
              must ensure that exceptional circumstances (e.g., skills and potential job
              offers) are documented in TWIST Counselor Notes to warrant the issuance
              of this waiver.

       3. Retirement—The worker intends to retire and is within two years of being          NLF
          eligible for Social Security retirement benefits or a private pension sponsored
          by the employer or labor organization. Boards must ensure that the trade-
          affected worker self-attests the following information:
           Anticipated date of retirement
           Anticipated date of receipt of Social Security benefits, private pension, or
              both
           Company name providing private pension, if applicable

           Boards must ensure that the information is entered into TWIST Counselor          NLF
           Notes to support issuance of the waiver.

       4. Health—The worker is unable to participate in training due to the health of       NLF
          the worker. This waiver does not exempt the participant from availability for
          work, active work search, or refusal to accept work requirements of the
          federal or state UI laws. Boards must ensure that TWIST Counselor Notes
          reflect that a Health waiver has been issued and that this entry retains the
          customer’s privacy (i.e., the health specifics are not provided).

       5. Enrollment Unavailable—The first available enrollment date for the approved       NLF
          training of the worker is beyond his or her waiver/in-training deadline date,
          but before the end of his or her Basic TRA eligibility period. To grant an


WD Letter 27-12                             3
           Enrollment Unavailable waiver, Boards must ensure that the training
           occupation, institution(s), and start date are identified and documented in
           TWIST Counselor Notes.

       Note: In some circumstances, a worker who has identified a training occupation        NLF
             can have options to enroll at more than one institution to pursue the
             desired training program. Boards must be aware that the worker is not
             required to choose the specific training institution at the time of waiver
             issuance. Rather, the worker is required to choose a training occupation
             and identify a training institution(s) where an enrollment date into training
             can be reasonably projected to occur before the end of the worker’s Basic
             TRA eligibility period.

       6. Training Not Available—Approved TAA training is not reasonably available           NLF
          to the worker, no training that is suitable for the worker is available at
          reasonable cost, or no training funds are available in the state. Boards must
          ensure that this waiver is rarely used, as there are available training
          facilities/programs available to trade-affected workers throughout the state
          and training funds are currently available. An example of when a Training
          Not Available waiver would be approved is a situation in which an REP had
          been fully formulated but denied, and there was not a reasonable ability to
          reformulate an approvable plan before the waiver/in-training deadline date.
          Boards must ensure that the circumstances leading to the granting of a
          Training Not Available waiver are detailed in TWIST Counselor Notes.

       Waiver Duration
       Boards must ensure that the duration of a waiver complies with the following:         NLF


          The time frame for waivers must be tailored to the customer’s specific
           circumstances and the waiver criteria used. Waivers cannot be uniformly
           issued for a 26-week period; however, a waiver may be issued initially for a
           maximum 26-week period if circumstances dictate.

          The maximum 26-week period may be extended through the issuance of a
           second waiver, if warranted, to cover the worker’s full entitlement to Basic
           TRA, if the customer continues to meet waiver criteria. This process is
           detailed in the Waiver Criteria or Duration Modification section of this WD
           Letter.

          The waiver end date must not extend beyond the trade-affected worker’s
           eligibility for Basic TRA.

          Waivers must be effective the date of issuance and end on a Saturday, no later
           than the last Saturday within the customer’s entitlement to Basic TRA.




WD Letter 27-12                              4
       Boards must ensure that at the time a customer applies for a waiver, Workforce           NLF
       Solutions Office staff reviews TWIST Counselor Notes to determine if an entry
       has been made by UI/TRA staff entitled “Basic TRA Eligibility Period.” UI/TRA
       staff routinely makes this entry at the time the customer applies for TRA. If this
       entry is present, it will indicate the estimated duration of the Basic TRA eligibility
       period, and the end date will reflect the maximum end date of any waiver that is
       granted. If no entry entitled Basic TRA Eligibility Period is entered into TWIST
       Counselor Notes, Boards must ensure that Workforce Solutions Office staff
       contacts the Texas Workforce Commission’s (TWC) TAA office for a
       determination.

       Approval of Waivers
       Boards must ensure that waivers are approved by state merit staff.                       NLF
       Recommendations for waiver approval can be generated by other Workforce
       Solutions Office staff; however, Boards must ensure that final review and
       approval is accomplished by state merit staff to comply with the requirements of
       20 CFR Part 618.

       Boards must ensure that state merit staff enters:                                        NLF
        the waiver approval into the TWIST TAA Program Detail Waiver tab;
        the one-day TWIST service code 21–Case Management with TAA fund code
          121–Trade Adjustment Act; and
        the supporting waiver approval and qualifying criteria into TWIST Counselor
          Notes.

       Waiver Review
       Boards must ensure that Workforce Solutions Office staff apprises customers of           NLF
       their responsibility to comply with the requirement that they contact their case
       manager every 30 days to review the status of a waiver.

       Boards must ensure that, after issuance, case managers document customer                 NLF
       compliance with the 30-day waiver-review requirement. The review, which can
       be accomplished by state merit or non-merit staff, ensures that the criteria used to
       grant the waiver still apply and the waiver period is appropriate. Waiver reviews
       will likely yield one of the following results and require the specified actions:

          Waiver reason continues to apply—A notation must be made in TWIST
           Counselor Notes supporting the review;

          Waiver reason no longer applies and enrollment is possible and scheduled—
           Since this revocation will not result in the denial of TAA or TRA benefits, the
           waiver can be revoked without the issuance of a formal decision through
           TWC’s TAA office. It also does not require the approval of state merit staff.
           The customer must be enrolled in training within 30 days of waiver revocation
           to maintain TRA eligibility;



WD Letter 27-12                              5
          Waiver reason no longer applies and enrollment is not possible—These
           circumstances will possibly lead to a denial of TRA benefits, therefore a
           formal determination is required; or

          Waiver Review: Failure to Comply—Failure to comply with a waiver review
           is a TRA eligibility issue and will affect the customer’s TRA support.
           However, failure to comply with a 30-day review is adjudicated through the
           UI/TRA system, and does not represent a basis for revocation of a waiver.

       When a waiver is to be revoked, and TRA benefits could be denied as a result,           NLF
       Boards must ensure that Workforce Solutions Office staff completes the
       recommendation for revocation section of the original Waiver of Training
       Requirement Form (WOT-1)—available on the Intranet in English and Spanish at
       https://intra.twc.state.tx.us/intranet/gl/html/trade_forms.html—and submits it to
       TWC’s TAA office along with documentation supporting the revocation action.
       TWC’s TAA office state merit staff will issue the revocation in a formal
       appealable decision.

       Boards may determine how reviews are conducted (e.g., office visits, telephone           LF
       conversations, or e-mail exchanges).

       However, Boards must ensure that the waiver review includes both the trade-             NLF
       affected worker and the case manager.

       Boards must ensure that all waiver reviews are documented in TWIST by:                  NLF
        detailing in TWIST Counselor Notes whether the customer continues to meet
          waiver eligibility criteria; and
        entering a one-day TWIST service code 21–Case Management using TAA
          fund code 121–Trade Adjustment Act.

       Recommendation of Waiver for Denial
       If a trade-affected worker requests a waiver but does not meet waiver eligibility       NLF
       criteria, Boards must ensure that Workforce Solutions Office staff processes the
       request with a recommendation for denial on Form WOT-1, along with
       appropriate documentation for a formal denial of benefits, and submits it to
       TWC’s TAA office. Denial of a waiver most commonly occurs when customers:
        have exhausted their Basic TRA eligibility;
        have missed their waiver/in-training deadline date; or
        do not have a specific training occupation, training institution, or training start
            date.

       Boards must ensure that Workforce Solutions Office staff documents a                    NLF
       recommendation of waiver denial in TWIST and makes the following entries:
        detailing the determination that the customer does not meet waiver eligibility
           criteria in TWIST Counselor Notes; and



WD Letter 27-12                              6
          entering a one-day TWIST service code 21–Case Management using TAA
           fund code 121–Trade Adjustment Act.

       Waiver Criteria or Duration Modification
                                                                                                           NLF
       If the term or waiver criteria for an issued waiver requires modification, Boards
       must ensure that Workforce Solutions Office staff amends waivers only under the
       following circumstances:
        Existing waiver criteria no longer applies, and other criteria applies: modify
            existing criteria to new criteria; or
        Existing time frame does not exceed 26-week maximum duration and
            qualifying waiver criteria continues to apply: modify existing time frame up to
            the maximum of a 26-week period.

       Boards must ensure that the modification of waiver duration or criteria is:                         NLF
        approved by state merit staff; and
        documented in TWIST Counselor Notes; and
        reflected by a one-day TWIST service code 21–Case Management using TAA
          fund code 121–Trade Adjustment Act.

       If an initial waiver has been granted for the maximum 26-week period and the                        LF
       customer has not exhausted his or her Basic TRA eligibility period, Boards may
       issue a second waiver if the customer continues to meet waiver eligibility criteria.

       Boards must ensure that the second waiver:                                                          NLF
        is issued for a period not to exceed the customer’s Basic TRA eligibility; and
        is approved by state merit staff. (See the Approval of Waivers section of this
          WD Letter for data entry instructions.)

INQUIRIES:
     Direct inquiries regarding this WD Letter to taa@twc.state.tx.us.

RESCISSIONS:
      WD Letter 07-12
________________________________________________________________________
REFERENCE:
       Trade Adjustment Assistance Extension Act of 2011 (Public Law (PL) 112-40)
       Omnibus Trade Act of 2010 (PL 111-344)
       Trade and Globalization Adjustment Assistance Act of 2009, Division B, Title I, Subtitle I of the
           American Recovery and Reinvestment Act of 2009 (PL 111-5)
       Trade Adjustment Assistance Reform Act of 2002, Division A, Title I, Subtitle A of the Trade Act
           of 2002 (PL 107-210), as amended by the Miscellaneous Trade and Technical Corrections Act
           of 2004 (PL 108-429)
       Chapter 2 of Title II of the Trade Act of 1974, as amended (PL 93-618)
       20 CFR Part 617
       20 CFR Part 618
       29 CFR Part 90
       U.S. Department of Labor Employment and Training Administration, Training and Employment
           Guidance Letter No. 11-02, issued October 10, 2002, and entitled “Operating Instructions for



WD Letter 27-12                                   7
           Implementing the Amendments to the Trade Act of 1974 Enacted by the Trade Act of 2002,”
           with Changes 1, 2, and 3
       U.S. Department of Labor Employment and Training Administration, Training and Employment
           Guidance Letter No. 22-08, issued May 15, 2009, and entitled “Operating Instructions for
           Implementing the Amendments to the Trade Act of 1974 Enacted by the Trade and
           Globalization Adjustment Assistance Act of 2009”
       U.S. Department of Labor Employment and Training Administration, Training and Employment
           Guidance Letter No. 10-11, issued November 18, 2011, and entitled “Operating Instructions
           for Implementing the Amendments to the Trade Act of 1974 Enacted by the Trade
           Adjustment Assistance Extension Act of 2011 (TAAEA)”
       WD Letter 37-07, Change 1, issued January 2, 2008, and entitled “Workforce Investment Act:
           Application of Definitions of Credential, Degree/Diploma, and Certificate: Clarification”
       WD Letter 52-09, Change 1, issued February 2, 2010, and entitled “Trade and Globalization
           Adjustment Assistance Act of 2009—Update”
       WD Letter 06-12, issued March 9, 2012, and entitled “Amendments to the Trade Act of 1974
           Enacted by the Trade Adjustment Assistance Extension Act of 2011”

FLEXIBILITY RATINGS:
       No Local Flexibility (NLF): This rating indicates that Boards must comply with the federal and
       state laws, rules, policies, and required procedures set forth in this WD Letter and have no local
       flexibility in determining whether and/or how to comply. All information with an NLF rating is
       indicated by “must” or “shall.”
       Local Flexibility (LF): This rating indicates that Boards have local flexibility in determining
       whether and/or how to implement guidance or recommended practices set forth in this WD Letter.
       All information with an LF rating is indicated by “may” or “recommend.”




WD Letter 27-12                                    8

								
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