7.5 Eligibility Denials and Terminations

7.5.1 Overview

Effective date: January 20, 2020

As part of the initial eligibility procedure, the state must deny an institution's request to have a training program included on the ETPL if the institution and/or its training program fail to meet the state's eligibility requirements.¹ Once the institution's training program is on the ETPL, the state must terminate eligibility if the eligibility requirements are no longer met² or the institution commits a substantial violation.³

Eligibility may be terminated, for the reasons outlined above, at any time, not just during the period of continued eligibility.⁴ When a training program's eligibility is terminated, the program must be removed from the published ETPL.⁵ The state must specify in its ETPL procedures the individual or entity responsible for denying and terminating eligibility and removing programs from the published ETPL.⁶ The state should also address how to handle situations where one or more participants are currently enrolled in a training program that must be removed from the ETPL; ideally, the mechanism for handling is done so in a way that results in minimal disruption to the participant.⁷

Under WIOA, an institution commits a substantial violation when it: (1) fails to meet the state's procedure for timely and accurately submitting required information for annual ETP performance reporting,⁸ (2) fails to meet the state's procedure for timely and accurately submitting all required information for initial or continued eligibility,⁹ (3) intentionally provides false information,¹⁰ or (4) violates any provision of WIOA Title I or its regulations, including the nondiscrimination and equal opportunity provisions.¹¹ The state's ETPL procedures must take into account exceptional circumstances beyond the institution's control (e.g., natural disasters, unexpected personnel transitions, and unexpected technology-related issues) when determining if an institution committed a substantial violation for failing to timely and accurately submit required information.¹² If it is determined that exceptional circumstances existed, then a substantial violation did not occur.¹³ If it is determined that an institution committed a substantial violation, the institution is prohibited from having its programs on the published ETPL for a minimum of two years and it is liable to repay any WIOA Youth, Adult, and Dislocated Worker Program funds it received during the period of noncompliance.¹⁴

¹20 CFR §§ 680.430(b)(2) and 680.450(a) & (d)
²20 CFR § 680.480(a) & (c)
³20 CFR § 680.480(b)
⁴20 CFR § 680.430(b)
⁵20 CFR § 680.480(b)(3) and (4); TEGL 08-19 Attachment II, p. II-5
⁶20 CFR § 680.480(b); TEGL 08-19 Attachment II, p. II-5
⁷ TEGL 41-14, p. 12. DWD-DET is including this citation to TEGL 41-14 as the information referenced is not contained in TEGL 08-19. See 7.1.6 "Training Program Removal" for DWD-DET's policy.
⁸20 CFR § 680.460(l)
⁹20 CFR § 680.460(l)
¹⁰20 CFR § 680.480(b)
¹¹20 CFR § 680.480(b). DOL does not offer guidance on what should constitute a "substantial violation" for failing to comply with "any provision" of WIOA Title I and its regulations, as referenced in 20 CFR § 680.480(b). In the absence of federal guidance, it is DWD-DET's interpretation that 20 CFR Part 683, "Administrative Provisions Under Title I of the Workforce Innovation and Opportunity Act," does not apply to training institutions with respect to their role on the ETPL. The "Administrative Rules, Costs, and Limitations" specified in Subpart B apply only to "recipients" and "subrecipients" of a federal award under Title I of WIOA and the Wagner-Peyser Act. See 20 CFR § 683.200. There is no support in the Act, the corresponding final rules, or TEGL 41-14, that training institutions published on the ETPL constitute either a "subrecipient" or "recipient," as defined at 2 CFR §§ 200.86 and 200.93 in the Uniform Guidance. Likewise, there is no support that ITAs are considered "federal awards" based on the definition at 2 CFR § 200.38. However, 29 CFR 38.4(zz) of the "Nondiscrimination and Equal Opportunity Provisions of the Workforce Innovation and Opportunity Act" defines "recipient" differently than the Uniform Guidance and specifically includes eligible training providers. Therefore, training institutions—with respect to their role on the ETPL—are subject to all provisions of WIOA's nondiscrimination and equal opportunity provisions and noncompliance with any provision constitutes a substantial violation.
¹²20 CFR §680.460(l)(1); 81 FR 56138
¹³81 FR 56138
¹⁴20 CFR § 680.480(b)

7.5.2 Wisconsin's Procedures for Eligibility Denials and Terminations

Effective date: February 7, 2020

DWD-DET, as Wisconsin's State Workforce Agency, is responsible for determining (1) when new institutions and their training programs must be denied initial eligibility, (2) when eligibility must be terminated, and (3) what constitutes a substantial violation. Additionally, DWD-DET is responsible for removing training programs from the state's ETPL website if eligibility is terminated. DWD-DET's procedures for denying or terminating eligibility of registered apprenticeship programs is outlined in 7.8 Registered Apprenticeships.

Denial of Initial Eligibility

DWD-DET will deny initial eligibility for the following reasons:

the institution does not meet the Institution Minimum Requirements;
the institution is classified as an "Alternate" institution and is requesting to add a program to the ETPL website that does not satisfy at least one of the alternate eligibility criteria;
the institution does not satisfy DWD-DET's institution-level or program-level information requirements;
OR
the institution is determined to have committed a substantial violation.¹

When DWD-DET denies initial eligibility, it sends an email identifying the reason(s) for the denial to the institution's Officer (if the Officer has been independently identified) and to the individual who submitted the Institution Application.

Termination of Eligibility

Eligibility is terminated when, at any point:

the institution takes steps within the ETPL Provider Portal to remove the training program from the ETPL website;
the institution no longer meets DWD-DET's Institution Minimum Requirements;²
the institution was classified as a "Standard" institution and it no longer meets one of the standard eligibility criteria;³
the institution is classified as an "Alternate" institution and the program no longer meets one of DWD-DET's alternate eligibility criteria;
the institution no longer supplies all required institution- and program-level information for the training program;
the institution, as part of continued eligibility, does not timely submit required individual-level information for all students enrolled in the training program;
the program was a registered apprenticeship program that has lost its registered status;⁴
OR
the institution is determined to have committed a substantial violation.⁵

In situations where eligibility is terminated solely because of the circumstances outlined in (5) and (6), above, the institution must submit the required information before the program can be republished to the ETPL website. DWD-DET does not consider either of these situations to rise to the level of a substantial violation.

Criteria for Substantial Violations

DWD-DET considers an institution to have committed a "substantial violation" when:

DWD-DET determines that the institution intentionally supplied inaccurate information within the ETPL Provider Portal;
the institution, over a period of five years, has had three separate complaints filed against it under 29 CFR part 38 of the WIOA nondiscrimination and equal opportunity provisions that have resulted in final determinations⁶ finding one or more violation(s);
the institution is found to have not complied with the corrective or remedial actions identified to end and/or redress the violation(s) stemming from a single complaint under 29 CFR part 38;
AND/OR
there is an order against the institution under 29 CFR § 38.113 suspending, terminating, denying, or discontinuing WIOA Title I financial assistance to the institution.
Note: For (b) and (c), if DWD-DET receives a WIOA participant complaint alleging these types of substantial violations, DWD-DET will refer the complaint to the appropriate state or federal investigative body for a determination. If a local WDB receives the complaint, it must notify DWD-DET.

Removal from the ETPL Website

Typically, DWD-DET terminates a training program's eligibility and removes it from the ETPL website during the continued eligibility process; however, DWD-DET may terminate eligibility at any time if it determines that there are grounds to do so. When DWD-DET terminates a training program's ETPL eligibility, it sends an email that identifies the reason(s) for the termination to the institution's Officer and all of the institution's ETPL Provider Portal users.

If DWD-DET determines that an institution committed a substantial violation, DWD-DET removes the institution and all of its programs, including registered apprenticeships, from the ETPL website for a minimum of two years. The period of removal lasts for two years from the date of that determination. However, the period of removal may (and often will) extend beyond two years if there are multiple determinations stemming from multiple levels of review, including determinations made under 29 CFR part 38. The two-year period, in these cases, is calculated from the date of the final determination.⁷ During the period of removal, the institution is prohibited from publishing new training programs to the ETPL website. Following the period of removal, the institution must follow Wisconsin's Initial Eligibility Procedure if it wishes to have its training program(s) added to the ETPL website. DWD-DET determines WIOA substantial violation periods of noncompliance and fund reclamation procedures on a case-by-case basis.

¹ While 20 CFR § 680.480(b) states that ETPL eligibility must be terminated if an institution commits a substantial violation, DWD-DET extends this provision to include ETPL eligibility denials.
² All programs for the specified institution will be removed if the institution no longer meets the "Institution Minimum Requirements."
³ All programs for the specified institution will be removed if the institution was categorized as a "Standard" institution and no longer meets one of the standard eligibility criteria.
⁴ 20 CFR § 680.470(b)(1)
⁵ All programs for the specified institution will be removed if DWD-DET determines that the institution committed a substantial violation.
⁶ For purposes of 29 CFR part 38, DWD-DET considers a "determination" as a Notice of Final Action under 29 CFR § 38.72(b)(5), an Initial Determination under 29 CFR § 38.87, a Final Determination under 29 CFR § 38.95, a Breach of Conciliation Agreement under 29 CFR § 38.98, or an initial or final decision issued under 29 CFR § 38.112. A determination may also be issued by the Equal Employment Opportunity Commission or another agency, if the Civil Rights Center refers the matter, consistent with 29 CFR § 38.81. A final determination, for purposes of Wisconsin's ETPL Procedure, is the last decision issued with respect to a single complaint.
⁷ See footnote 6 for the definition of "final determination."