La. Admin. Code tit. 67 § VII-519

Current through Register Vol. 50, No. 11, November 20, 2024

Section VII-519 - State Licensing Agency Responsibilities for Business Enterprise Operations

A. Business Enterprise Equipment and Fixtures. The SLA will provide each business enterprise with fixtures and equipment in such quantity and quality so as to give reasonable assurance of successful operation by the licensed manager.

B. Additions, Deletions, or Modifications to Equipment. The licensed manager will make no additions, deletions or modifications to the business enterprise and its operation, in the form of equipment, fixtures or facilities, without first obtaining written authorization from the SLA.

C. Maintenance and Replacement of Business Enterprise Equipment. The SLA shall maintain, or cause to be maintained, all business enterprise equipment in good repair and in an attractive condition and shall replace or cause to be replaced worn-out and obsolete equipment as required to ensure the continued successful operation of the business enterprise. (34 CFR 395.10)

D. Initial Inventory and Supplies. The SLA shall provide for initial inventory of merchandise for resale and for operating a business enterprise by a licensed manager.

E.Assignment, Transfer of Licensed Managers. The SLA will carry out assignment and transfer of licensed managers through business enterprise vacancy announcements, eligibility verification, and establishing and convening a screening committee.

1. Business Enterprise Vacancy Announcement

a. The SLA will develop minimum qualifications specific to the characteristics of the vacant enterprise. These minimum qualification will establish the level of accomplishment expected of the applicant for the vacant business enterprise in each of the areas to be considered by the screening committee as described in §519. E.2 Extra consideration will be given to displaced licensed managers:

i. location, type of enterprise, and general description of operations;

ii. minimum qualifications;

iii. for a new enterprise, estimates of monthly net sales based upon potential patronage, with disclaimer this estimate is not a guarantee of sales; and

iv. application due date.

2. Eligibility Verification and Referral to Screening Committee. The SLA shall provide a list of eligibility criteria and refer eligible applicants to the screening committee. selection shall be based upon:

a. managerial and other skills and abilities demonstrated by the licensed managers under consideration as they fit the available business enterprise, including:

i. handling labor needs;

ii. complexity of financial skills;

iii. food preparation and production; and

iv. customer relations;

b. previous records of the licensed manager under consideration, including:

i. consideration of the timeliness and accuracy of record keeping;

ii. customer satisfaction;

iii. improvements in profits;

iv. safety and sanitation inspections;

v. fees, taxes, and bill payment history;

vi. initiative shown in upgrading skills;

vii. regularity of work attendance;

viii. compliance with applicable rules and laws; and

ix. past evaluations by the SLA;

c. seniority of eligible licensed manager.

3. Screening Committee and Recommendation for Assignment. The screening committee shall be established and convened by the SLA. The screening committee will consider applicants for assignment and transfer. The committee shall make recommendation(s) to the SLA or designee. At least one member of the screening committee shall be a representative of the elected committee of managers.

F. Vending Machine Income. Vending machine income will be managed by the following.

1. Vending machine income from vending machines on Federal property which has been disbursed to the SLA by a property manager under the vending machine income sharing provisions of the federal regulations shall accrue to each licensed manager operating a business enterprise on federal property in an amount not to exceed the average net income of the total number of licensed managers, as determined each fiscal year on the basis of each prior year's operations, except that vending machine income shall not accrue to any licensed manager in any amount exceeding the average net income of the total number of licensed managers in the United States. [ 34 CFR 395.8(a)]

2. No licensed manager shall receive less vending machine income than he/she was receiving during the calendar year prior to January 1, 1974, as a direct result of any limitation imposed on such income under this ceiling. (34 CFR 395.32)

3. One-hundred percent of all vending machine income from vending machines on Federal property which are in direct competition with a business enterprise operated by a licensed manager will accrue to the SLA which shall disburse such income to such licensed manager operating such business enterprise on such property provided that the total amount of such income accruing to such licensed manager does not exceed the maximum amount determined under 34 CFR 395.8(a). In the event that there is income in excess of the maximum amount which may be disbursed to the licensed manager under 34 CFR 395.8(a), such additional income shall accrue to the SLA for purposes determined in accordance with 34 CFR 395.8(c). [ 34 CFR 395.32(b)]

4. The SLA will disburse vending machine income to qualifying licensed managers on at least a quarterly basis. [ 34 CFR 395.8(b)]

5. Vending machine income retained by the SLA will be sued in accordance with applicable federal regulations. [ 34 CFR 395.8(c)]

6. Unassigned income from non-federal property is used to develop and enhance the BEP.

G. Due Process. The SLA provides procedures for fair hearings of licensed managers grievances. These procedures provide each licensed manager the opportunity to seek remediation of dissatisfaction with any SLA action arising from the operation of the BEP and are set forth in the following.

1. Informal Administrative Review. It is the policy of the SLA to resolve complaints in an expeditious and facilitative manner. These resolutions shall be accomplished through the informal administrative review process whenever possible. A licensed manager has the right to request a full evidentiary hearing at any time within established due process time lines.

a. Information administrative reviews are conducted by the SLA staff person closest to the problem who was not involved in the action resulting in the complaint, and who can resolve the complaint in the most expeditious manner.

b. The information administrative review is to be completed within 45 calendar days of receipt of the written complaint to the appropriate SLA staff person.

c. The results of the informal administrative review are to be reported in writing to the BEP administrator, with a copy going to the licensed manager affected.

2. Full Evidentiary Hearings. Licensed managers have the right to a full evidentiary hearing to resolve dissatisfaction with any SLA action arising from the operation or administration of the Business Enterprises Program. Evidentiary hearings shall be conducted as set forth in the following.

a. If the complaint cannot be resolved with an informal administrative review, or in the absence of an information administrative review, the licensed manager may request a full evidentiary hearing. The request for a full evidentiary hearing must be made to the BEP Administrator in writing within 30 calendar days from the date the licensed manager receives the written notification of adverse action, or the written report of the information administrative review. The request for a full evidentiary hearing is to be sent by certified mail.

b. The licensed manager may be represented in the evidentiary hearing by legal counsel, or other representation of the licensed manager's choice, and at the licensed manager's expense.

c. Reader services or other reasonable accommodations will be arranged by the SLA upon the request of the licensed manager.

d. The hearing will be scheduled by the SLA for a time and place convenient and accessible to the licensed manager and the SLA staff involved in the hearing. The licensed manager will be notified of the place and time of the hearing and the right to be represented by legal or other counsel in writing.

e. The hearing will be conducted by an impartial and qualified official with no involvement or vested interest in the SLA, action at issue, or with the operation of the affected business enterprise. The presiding officer will conduct the hearing in accordance with state and/or federal laws and rules governing the conduct of such proceedings. In any case, the hearing will be conducted in a manner that avoids delay, maintains order, and provides for a full recording and reporting of the proceedings so that a full and true disclosure of the facts and issues occurs.

f. The hearing officer's determination will be based upon the facts as presented by both parties and upon applicable law, and the existing rules of the SLA. The hearing officer does not have the power to rule upon the legality or construction of the rules themselves. The officer's decision will determine the relevant issues and facts to be ruled upon.

g. The hearing officer shall make a written report of the evidence presented, the laws and rules used in determining a resolution, and the resolution itself. This report shall be issued to the BEP Administrator and the licensed manager, or his/her authorized representative within 15 calendar days of the conclusion of the full evidentiary hearing.

h. If the licensed manager is dissatisfied with the decision, she or he may request that the secretary (USDE) convene an arbitration panel. The request for an arbitration panel must be made in writing within 30 calendar days from the date the licensed manager receives written notification of the full evidentiary hearing decision.

3. Arbitration of Complaints after the Evidentiary Hearing. The licensed manager has the right to file a request for arbitration with the secretary (USDE) if dissatisfied with the outcome of the evidentiary hearing. By filing a complaint with the secretary, the operator consents to the release of information necessary for the conduct of an ad hoc arbitration panel.

a. The complaint must be filed in writing and must contain:

i. statement of the grievance;

ii. the date and place of the full evidentiary hearing;

iii. a copy of the decision and what actions have been taken because of the decision;

iv. the part of the decision which is causing the dissatisfaction and reason for the dissatisfaction; and

v. a statement as to what is required to remedy the situation.

b. The secretary (USDE) will convene an arbitration panel after receiving a compliant which meets the requirements in §519. G.3.a i-v. The decision of the panel will be final, except as provided for in 20 U.S.C. 107d-2. The secretary will pay the reasonable costs for the arbitration. An abstract of the arbitration decision will be published in the Federal Register. The panel will be convened by the secretary in accordance with the following:

i. the SLA shall designate one member of the panel;

ii. the licensed manager shall designate one member of the panel;

iii. the designees of the SLA and the licensed manager shall together designate the third panel member who shall not be an employee of the SLA or its parent agency. This member shall be the chairperson of the panel; and

iv. if the SLA or licensed manager does not select a member for the panel, the secretary will designate such a member on the applicable party's behalf.

4. Arbitration of SLA Complaints against Federal Agencies. The SLA is to resolve problems related to the operation of a business enterprise with the full participation of the licensed manager and the appropriate property manager. The SLA may file a complaint with the secretary (USDE) if it determines that an agency controlling Federal property is not complying with the provisions of the Randolph-Sheppard Act of U.S. Department of Education regulations. After the complaint is received, the secretary will convene an arbitration panel. If the panel finds that the Federal agency is in violation of the Act or USDE regulations, that Federal agency will be notified that it is expected to correct the violation according to 20 U.S.C. 107d-2. The secretary pays the reasonable costs of this arbitration. The decision resulting from the arbitration will be published in the Federal Register. The arbitration panel will be convened by the secretary in accordance with the following:

a. the SLA will designate one member of the panel;

b. the agency controlling the federal property over which the dispute arose will designate one member of the panel;

c. the designees of the SLA and the agency controlling the property will designate a third member who is not an employee of the agency. This member will chair the panel; and

d. if either the SLA or the head of the federal department, agency, or instrumentality fails to designate a member of an arbitration panel, the secretary shall designate such member on behalf of such party.

H. Enforcement Randolph Sheppard Priority. The SLA is responsible for notifying entities of the Randolph Sheppard priority to operate vending services as specified in R.S. 23:3023. If there is a dispute that cannot be resolved by the parties, the SLA will file for a full evidentiary hearing as follows.

1. Full Evidentiary Hearings. A full evidentiary hearing shall be conducted by an impartial and qualified official designated by Louisiana Rehabilitation Services with no involvement or vested interest in the dispute at issue.

a. The hearing offices shall make a written report of the evidence presented, the laws and rules used in determining a resolution, and the resolution itself.

b. Report shall be issued to all parties within 30 calendar days of the conclusion of the full evidentiary hearing.

c. The decision shall be final and conclusive unless fraudulent, or unless either party institutes a suit pursuant to R.S. 23:2023(G).

I. Implementation of R.S. 23:3023(D): Employment and Training Targets for Persons who are Blind or Otherwise Disabled

1. Requirement applies to:

a. each blind vendor who employs greater than 10 employees and operates a BEP facility under a permit ratified or issued after the promulgation of this Subsection;

b. businesses that provide services to BEP facilities that employ greater than 10 employees and operate under a contract ratified or issued after the promulgation of this Subsection.

2. Employer Guidelines. Specific targets will be determined by the employer and may include:

a. establishing numerical hiring goals to include individuals with disabilities and incorporate these goals in their hiring practices;

b. engaging in outreach activities and targeted recruitment of individuals with disabilities;

c. utilizing services provided by Louisiana Rehabilitation Services to access a qualified pool of candidates for on the job training and temporary and permanent employment opportunities.

3. LRS role will be to govern and implement initiatives to provide education, outreach and information regarding effective business practices that foster employment of blind or otherwise disabled individuals. The expected outcome of these strategies, is to increase job opportunities for individuals who are blind or otherwise disabilities.

J. Louisiana Rehabilitation Services shall submit a quarterly performance report of the agencys programs for blind persons to the legislature by the end of the month following the end of the quarter. An annual report shall be submitted no later than 60 days prior to the convening of the Regular Legislative Session.

La. Admin. Code tit. 67, § VII-519

Promulgated by the Department of Social Services, Office of Rehabilitation Services, LR 25:532 (March 1999), Amended by the Workforce Commission, Rehabilitation Services, LR 411312 (7/1/2015), Amended by the Workforce Commission, Rehabilitation Services, LR 412178 (10/1/2015).

AUTHORITY NOTE: Promulgated in accordance with R.S. 23:3022.