National Federation of the Blind of Tennessee

>1240-6-13-.01 Priority for the Establishment of Vending Facilities on Public Properties in Tennessee 101

(1) The Department of Human Services, Services for the Blind and Visually Impaired, has responsibilities to administer the vending facility program for blind managers. The program shall be known as Tennessee Business Enterprises (TBE). The Department shall administer TBE in accordance with the Randolph-Sheppard Act, as amended, and T.C.A. ง 71-4-501 et seq. T.C.A. งง 71-1-105 and 71-4-203 empower the Department of Human Services to comply with any requirement that may be imposed by federal law or regulation.

Authority: T.C.A. งง 4-5-201 et seq., 49-11-601 et seq., 71-1-104, 71-4-501 et seq., and 71-4-604(c); 20 U.S.C.A. ง 107 et seq.; and 34 C.F.R. ง 395 et seq. Administrative History: Original rule filed August 30, 1978; effective November 29, 1978. Amendment filed May 25, 1983; effective June 24, 1983. Repeal and new rule filed April 8, 2005; effective June 22, 2005.

1240-6-1-.02 DEFINITIONS

(1) Active Participation:

An ongoing process of negotiations between the state licensing agency and the Committee to achieve joint planning and approval of program policies, standards and procedures affecting the overall operation of the vending facilities program, prior to their implementation by the Agency. The implementation of agreed-upon policies, standards and procedures affecting the overall operation of the vending facilities program, shall be subject to review by the Committee. It is understood that the Agency bears final authority and responsibility for the administration and operation of the vending facilities program, including the assurance of continuing, active participation with the Committee.

(2) Agency

Area Representative:

A manager or managers who are elected to the Committee of Blind Vendors by his/her peers on a regional basis.

(4) Blind Person:

A person who, after examination by a physician skilled in the diseases of the eye, has been determined to have not more than 20/200 control visual acuity in the better eye with correcting lenses, or an equally disabling loss of the visual field as evidenced by a limitation to the field of vision in the better eye to such a degree that its widest diameter subtends an angle of no greater than twenty (20) degrees.

(5) Certification:

Issued by the Agency to licensed managers indicating the categories of facilities which the manager is eligible to operate.

(6) Committee of Blind Vendors:

(Committee) - an officially constituted body within State government, functioning as an integral part of the State's vending facility program. The Committee shall be fully representative of all licensed managers elected biennially and established, constituted, and maintained in accordance with 34 C.F.R. ง 395.14.

(7) Demotion:

Reassignment of a licensed manager to a vending facility with projected sales of no more than eighty-five percent (85%) of the manager’s present facility. The decision to demote a manager rests solely with the Agency and is based upon the manager’s inability to effectively manage his/her present facility after making a good faith effort to do so.

(8) Instrument of Facility Assignment:(IOFA)-

A document which shall be executed by the Agency and the manager, covering the duties and responsibilities of each party.

(9) License:

A written certificate issued by the Agency to a qualified blind person to operate a vending facility.

(10) Management Staff:

TBE personnel who work under the immediate supervision of the Director of Services for the Blind and Visually Impaired in carrying out the statewide goals and objectives of TBE.

(11) Manager:

A qualified blind person licensed by the Agency to operate a vending facility on federal or other property.

(12) Net Proceeds: Net sales of a facility, less merchandise purchased and other allowable expenditures, plus any commissions, vending machine income, rebates, and/or commissions paid to the manager.

(13) On-the-job training:

Facility-based training supervised by a qualified licensed manager as part of the entry level training requirements.

(14) Operations Manual:

Developed jointly by the Agency and the Committee, it contains the policies and procedures for the day-to-day administration of TBE and specific requirements for the operation of vending facilities.

(15) Permit:

(16) Post employment services:

Vocational rehabilitation services for which a client is eligible after being placed into employment and the Vocational Rehabilitation Counselor has closed the case.

(17) Priority:

The right given to TBE and its licensed managers to operate vending facilities on public properties in Tennessee.

(18) Promotion:

Assignment of a licensed manager to a vending facility by competitive bid process.

(19) Public Property:

All property owned or leased by the State of Tennessee, or by any county, municipality, or any other entity created by act of the General Assembly to perform any function. Primary and secondary schools, and entities created under title 42, and their operation are specifically excluded from this definition. Institutions governed by the University of Tennessee System or the State University and Community College System and their operations are also specifically excluded from this definition except that the vending facilities presently in operation at such institutions on April 29, 1996, shall continue to operate at their present locations or, if necessary, at a location comparable in terms of potential patronage, with the priority established by T. C. A. ง 71-4-501. Moreover, the existing priority shall extend to any new structures on any of the campuses governed by the University of Tennessee or the state university and community college system and the priority shall also extend to the establishment of at least one (1) vending facility on any new campus which is developed either by the University of Tennessee system or the state university and community college system.

(20) Ready-for-Employment List:

A list of all currently licensed managers who are not permanently assigned a facility. The ranking of these managers shall be based upon the accrual of seniority, or in the absence thereof, listed in the order in which they were certified by the Agency as eligible to receive a license.

(21) Set-aside Funds:

Funds which accrue to the Agency from an assessment against the net proceeds of each vending facility and any income from vending machines on property which accrues to the Agency.

(22) State Agency:

The Agency designated by the Commissioner of the U.S. Rehabilitation Services Administration to issue licenses to blind persons for operation of vending facilities, and to implement the operation thereof.

(23) TBE Consultant:

An Agency staff person who is assigned to work directly with the manager to ensure the effective and efficient operation of the vending facility.

(24) TBE Specialist:

Functions as a TBE Consultant; however, this individual has additional responsibilities not necessarily related to specific facility operations.

(25) TBE Supervisor:

Management staff who provide direct supervision to TBE Consultant/Specialists and who have additional statewide responsibilities.

(26) Temporary Manager:

One who manages a facility temporarily until such time as a permanent assignment can be made.

(27) Tennessee Business Enterprises: (TBE)

(28) Transfer - lateral:

Reassignment of a licensed manager to a vending facility where the annual gross sales are projected to be within a range of 15% of the annual gross sales of the manager’s previous facility.

(29) Vending Facility:

A location, structure, or space which may sell foods, beverages, confections, newspapers, periodicals, tobacco products, and other articles and services which are dispensed automatically by a machine or manually by sales personnel or attendants and which may be prepared on or off premises in accordance with applicable health laws. A vending facility may consist of automatic vending machines, cafeterias, snack bars, catering services, food concession vehicles, cart services, shelters, counters, and any appropriate equipment necessary for the sale of articles or services described above, and may encompass more than one building on a public property.

(30) Vending Machine Income:

Net proceeds from vending located on federal and other property which is paid directly to licensed managers or disbursed to the Agency for use as required by federal and state law.

Authority: T.C.A. งง 4-5-201 et seq., 49-11-601 et seq., 71-1-104, 71-1-105(12), 71-4-502, 71-4-604(c), and 71-4-702; 32 C.F.R. ง 260 et seq.; 34 C.F.R. ง 395 et seq., 34 C.F.R. 395.4; 34 C.F.R. ง 395.1(c),(i)(s),(x) and (z), and 34 C.F.R. ง 395.7. Administrative History: Original rule filed August 30, 1978; effective November 29, 1978. Amendment filed June 9, 1981; effective August 18, 1981. Amendment filed May 25, 1983; effective June 24, 1983. Amendment filed November 6, 1985; effective December 6, 1985. Amendment filed December 11, 1986; effective January 25, 1987. Amendment filed March 10, 1989; effective April 24, 1989. Amendment filed April 27, 1998; effective August 28, 1998. Repeal and new rule filed April 8, 2005; effective June 22, 2005.

CHAPTER 1240-6-2
LICENSE

The Agency shall issue licenses to blind persons who are in need of employment and who are determined to be:

(4) Qualified to manage a vending facility as evidenced by having successfully completed entry level training as well as successfully completing an on-the-job training.

Authority: T.C.A. งง 4-5-201 et seq., 49-11-601 et seq., 71-1-104, 71-1-105(12), 71-4-604, 71-4-604(c); 34 C.F.R. ง 395 et seq., 34 C.F.R. ง 395. 1(c), 34 C.F.R. ง 395.4, and 34 C.F.R. ง 395.7(a). Administrative History: Original rule filed August 30, 1978; effective November 12, 1978. Amendment filed May 25, 1983; effective June 24, 1983. Amendment filed May 15, 1984, effective August 14, 1984. Amendment filed March 10, 1989; effective April 24, 1989. Repeal and new rule filed April 8, 2005; effective June 22, 2005.

1240-6-2-.02 DISPLAYING OF LICENSE

(1) The manager shall prominently display in his/her vending facility the license or a copy of the license.

Authority: T.C.A. งง 4-5-201 et seq., 49-11-601, 71-1-104, 71-1-105(12), and 71-4-604 (c); 34 C.F.R. ง 395 et seq. and 34 C.F.R. ง 395.4. Administrative History: Original rule filed August 30, 1978; effective November 29, 1978. Amendment filed June 9, 1981; effective August 18, 1981. Amendment filed May 25, 1983; effective June 24,1983. Amendment filed March 10, 1989; effective April 24, 1989. Amendment filed April 27, 1998; effective August 28, 1998. Repeal and new rule filed April 8, 2005; effective June 22, 2005.

1240-6-2-.03 TERMINATION OF LICENSE.

(1) The Agency shall issue licenses for an indefinite period, but subject to termination if, after affording the manager an opportunity for a full evidentiary hearing, the Agency finds that the vending facility is not being operated in accordance with:

(2) The Agency will give thirty (30) days notice in advance of terminating a manager’s license, and such advance notice shall be given only after the expiration of a thirty (30) day probationary period, except as provided in chapters 1240-6-9-.03(3) and 1240-6-3-.01.

(b) The manager has an extended illness with a medically documented diagnosis of the manager’s incapacity to operate a facility; provided that the Agency has made available to the manager transfer eligibility under chapter 1240-6-5-.03(3), and that eligibility has expired;

(c) The manager loses his/her certification(s) and fails to reapply within the allotted time to attend and subsequently complete the next entry-level training class pursuant to chapter 1240-6-4-.02 (4); or

(d) The manager fails to meet the definition of blindness as set forth at chapter 1240-6-1-.02(4) and 34 C.F.R. Section 395.1(c). At its discretion, the Agency may require the manager to undergo an ophthalmologic examination to verify blindness. If an examination is required, the Agency will select the doctor and will pay for the office visit.

Authority: T.C.A. งง 4-5-201 et seq., 49-11-601 et seq., 71-1-104, 71-1-105(12), 71-4-603, and 71-4-604(c); 34 C.F.R. ง 395 et seq., 34 C.F.R. ง 395.1, 34 C.F.R. ง 395.4, and 34 C.F.R. ง 395.7. Administrative History: Original rule filed August 30, 1978; effective November 29, 1978. Amendment filed November 8, 1979; effective January 29, 1980. Amendment filed June 9, 1981; effective August 18, 1981. Amendment filed May 25, 1983; effective June 24, 1983. Amendment filed December 6, 1983; effective January 5, 1984. Amendment filed December 11, 1986; effective January 25, 1987. Amendment filed March 10, 1989, effective April 24, 1989. Amendment filed April 27, 1998; effective August 28, 1998. Repeal and new rule filed April 8, 2005; effective June 22, 2005.

1240-6-2-.04 INSTRUMENT OF FACILITTY ASSIGNMENT

(1) On the first day of business, the TBE Consultant/Specialist and the manager shall execute a document known as the "Instrument of Facility Assignment," which shall be developed by the Agency with the active participation of the Committee. The IOFA designates the assignment as temporary or permanent and clearly defines the responsibilities of the Agency and those of the manager to assure the effective and efficient operation of the facility to which the manager has been assigned.

(2) The following three documents shall be attached to and made a part of the IOFA:

Authority: T.C.A. งง 4-5-201 et seq., 49-11-601 et seq., 71-1-104, 71-1-105 (12) and (14), 71-4-603, 71-4-604,and 71-4-604(c); 34 C.F.R. ง 395 et seq., 34 C.F.R. ง 395.7(a), (c); 34 C.F.R. ง 395.16. Administrative History: Original rule filed May 25, 1983; effective June 24, 1983. Amendment filed March 10, 1989; effective June 24,1989. Repeal filed April 27, 1998, effective August 28, 1998. Repeal and new rule filed April 8, 2005; effective June 22, 2005.

CHAPTER 1240-6-3 PROBATIONARY PERIODS

1240-6-3-.01 NEWLY LICENSED MANAGERS

(1) When a manager is awarded a facility on a permanent or temporary basis for the first time, he must serve a consecutive six-month performance probationary period, during which he is not eligible to bid on another facility. If, during this probationary period, the manager violates any provision as specified in chapter 1240-6-3-.02(1) or there is evidence that the manager does not have the ability to effectively manage the facility, the Agency may remove the manager from the vending facility. After the removal, the Agency will determine whether or not to proceed with termination of license, require additional training, or allow the manager’s name to be placed on the Ready-for-Employment List.

Authority: T.C.A งง4-5-201 et seq., 49-11-601 et seq., 71-1-104, 71-1-105(12), and 71-4-604(c); 34 C.F.R. ง 395 et seq., 34 C.F.R. ง 395.7(b) and (c). Administrative History: Original rule filed August 30, 1978; effective November 29, 1978. Amendment filed November 8, 1979; effective January 29, 1980. Amendment filed May 25, 1983; effective June 24, 1983. Amendment filed November 6, 1985; effective December 6, 1985. Amendment filed March 10, 1989; effective April 24, 1989. Amendment filed April 27, 1998; effective August 28, 1998. Repeal and new rule filed April 8, 2005; effective June 22, 2005.

1240-6-3-.02 DISCIPLINARY PROBATIONS

(1) Established managers may be placed on probation for disciplinary purposes when the Agency determines that the vending facility is not being operated in accordance with:

(e) state law, the violation of which is, or reasonably may, result in financial or physical harm to the customers of the facility or other persons, the Department or the manager; or

(f) regulations of other agencies of the State of Tennessee which have regulatory authority directly related to the operation of a vending facility.

(2) Notice of disciplinary probation shall be sent to the manager by certified mail (return receipt requested) or notices may be hand delivered by the TBE Consultant/Specialist. The inception of probation shall be the date upon which the notice is received by the manager or his/her representative, as indicated on the signed receipt. If a representative accepts the notice, a copy of such notice shall be posted in the mail within twenty-four (24) hours from the time the representative accepted the notice. The notice of disciplinary probation shall contain the reason(s) for probation, steps to be taken, if any, to avoid termination and the manager’s right to appeal the Agency’s action pursuant to chapter 1240-6-11 of these rules. The probationary period shall be for a mandatory thirty (30) days.

(3) Managers who are placed on probation pursuant to paragraphs (1) and (2) of this section will not be permitted to bid.

(4) If a manager is placed on disciplinary probation for the same offense for the third time during a twelve (12) month period, the manager’s license will be terminated. This subsection will not be applicable to violations of chapter 1240-6-9-.03(1).

Authority: T.C.A งง 4-5-201 et seq., 49-11-601 et seq., 71-1-104; 71-1-105(12), and 71-4-604(c); 34 C.F.R.ง 395 et seq. and 34 C.F.R. ง 395.7 (b) and (c). Administrative History: Original rule filed June 9, 1981; effective August 18, 1981. Amendment filed February 28, 1963; effective May 16, 1983. Amendment filed May 25, 1983; effective June 24, 1983. Repeal and new rule filed November 6, 1985; effective December 6, 1985. Amendment filed March 10, 1989; effective April 24, 1989. Amendment filed April 27, 1998; effective August 28, 1998. Amendment filed April 27, 1998; effective August 28, 1998. Repeal and new rule filed April 8, 2005; effective June 22, 2005.

CHAPTER 1240-6-4 CLASSIFICATION AND CERTIFICATION

1240-6-4-.01 FACILITY CLASSIFICATIONS

(1) Each vending facility is classified into one or more of the following categories:

(2) After consultation with the area representative(s) of the Committee, the classification of new facilities or the reclassification of existing facilities shall be made pursuant to the provisions of the TBE Operations Manual.

Authority: T.C.A. งง4-5-201 et seq., 49-11-601 et seq., 71-1-104, 71-1-105(12), and 71-4-604(c); 34 C.F.R. ง 395 et seq. and 34 C.F.R. ง 395.7(c). Administrative History: Original rule filed August 30, 1978; effective November 29, 1978. Amendment filed November 8, 1979; effective January 29, 1980. Amendment filed March 10, 1989; effective April 24, 1989. Repeal and new rule filed April 27, 1998; effective August 28, 1998. Amendment filed July 20, 2001; effective November 28, 2001. Repeal and new rule filed April 8, 2005; effective June 22, 2005.

1240-6-4-.02 MANAGERS’ CERTIFICATION REQUIREMENTS

(1) All managers are certified by the Agency into one or more of the categories listed above in chapter 1240-6-4-.01.

(2) Certification shall be valid through the end of the calendar year following the year in which the certification(s) was obtained either by completing entry-level training, attending an Upward Mobility training session, or receiving a new certification as a result of training.

(3) In lieu of the Upward Mobility Training, managers may, at their own expense, take a food service or business related course at a college, university, or state technical institute, provided that prior approval is obtained in writing from the Agency, a passing grade of "C" or better is achieved and a copy of the transcript is provided to the Agency. The Agency, with the active participation of the Committee, may designate other outside seminars, conferences, or training sessions as sufficient to meet the requirements of an Upward Mobility training session. Subject to the availability of funds, the Agency and Committee may elect to offer financial incentives for managers who attend such outside training opportunities whether they do so for Upward Mobility credit or not.

(4) If a manager loses his/her certification(s) for failure to comply with either of the conditions set forth in paragraphs (2) and (3) of this section, the manager is subject to loss of license and removal from the facility if, within the thirty (30) days from the loss of certification(s), the manager does not make application for the next entry level training class for the purpose of regaining the certification(s) which have been lost. The Agency must approve the application if the manager is not delinquent with the filing of any reports required by the Agency, is not indebted to the State and is not being currently subjected to any disciplinary action. If the manager is accepted, failure to pass the class denies the individual re-entry into the program and results in the loss of his/her facility.

(5) Paragraph (4) above shall have no application to a manager who has lost his/her certification(s) prior to the implementation of these rules. The manager may continue to operate his/her facility provided that the classification of the facility does not change. If the classification does change, the manager shall be given an opportunity to attend the next appropriate training class to obtain the certification(s) which may be required. Failure to pass the class shall result in the loss of license and removal from the facility.

(6) A manager’s certification may be extended, allowing him/her to attend the next available Upward Mobility training class, if evidence is provided to the Agency documenting medical incapacity and/or other unavoidable circumstances of an extenuating nature which preclude his/her attendance at the Upward Mobility training class prior to the natural expiration of his/her certification.

(7) If the classification of a facility changes and the manager does not possess the necessary certification, the manager must make application, in writing, within thirty (30) days from the date (s)he is notified in writing by the Agency of the change of classification, to attend and successfully complete appropriate certification training. Failure to do so shall result in the manager being removed from the facility and placed on transfer status.

Authority: T.C.A. งง 4-5-201 et seq., 49-11-601 et seq., 71-1-104, 71-1-105(12) and 71-4-604(c); 34 C.F.R. ง 395 et seq. and 34 C.F.R. ง 395.7(c). Administrative History: Original rule filed August 30, 1978; effective November 29, 1978. Amendment filed May 25, 1983; effective June 24, 1983. Amendment filed November 6, 1985; effective December 6, 1985. Amendment filed March 10, 1989; effective April 24, 1989. Repeal and new rule filed April 27,1998; effective August 28, 1998. Repeal and new rule filed April 8, 2005; effective June 22, 2005.

CHAPTER 1240-6-5 ASSIGNMENT OF MANAGERS

(1) All managers are eligible to compete for promotional opportunities if, on the date the bid announcements are mailed, the manager:

(2) Six managers from those submitting bids shall be selected to compete for the promotion. The basis for this selection shall be seniority, provided the manager possesses the necessary certification(s). If two or more managers are tied for the sixth and final interview slot in terms of seniority, those managers who are tied will be permitted to interview.

(3) After the candidates have been determined, each candidate will be interviewed within ten (10) working days by a panel consisting of one Agency representative, the area representative of the Committee, and one person jointly determined by the other two panel members. The third panel member may be an independent business person, a property management official or another person familiar with TBE.

(4) The panel shall rate each candidate based upon his/her record of performance for the preceding twelve (12) months, responses received to questions, and personal appearance, demeanor, and attitude. Each panel member shall rate each candidate according to the following:

(5) The rating shall be done by ballot. The Chairperson of the panel, who shall be the Agency representative, shall collect the ballots and tabulate the ratings, which shall be verified by the other panel members. The successful manager shall be immediately offered the award. The manager must, at that time, either accept or reject the award. If the award is refused, the manager shall be precluded from having any further bids considered until one year has elapsed from the date of the refusal. If the manager is scheduled for more than one interview as a result of his/her bids on a number of facilities contained in a single bid package, then the manager may wait until the conclusion of the last interview in which the manager participates to accept or reject the award of a facility.

(6) It is understood that property management may impose additional selection criteria for managers on their properties. This may include, but is not limited to, such things as security clearance, special training, and random drug testing if such additional conditions are also required of property management’s employees. If a manager who is awarded a facility fails to meet the additional selection criteria, the manager with the next highest score who meets the additional selection criteria will be awarded the facility.

Authority: T.C.A. งง 4-5-201 et seq., 49-11-601 et seq., 71-1-104, 71-1-105(12), 71-4-204, and 71-4-604(c); 34 C.F.R. ง 395 et seq. and 34 C.F.R. ง 395.7(c). Administrative History: Original rule filed August 30, 1978; effective November 29, 1978. Amendment filed May 25, 1983; effective June 24, 1983. Repeal and new rule filed April 27, 1998; effective August 28, 1998. Repeal and new rule filed April 8, 2005; effective June 22, 2005.

1240-6-5-.02 BID ANNOUNCEMENTS<

(1) Bid announcements for a vending facility available for award shall be sent to all licensed managers within the state. The bid announcement shall be on a form developed by the Agency with the active participation of the Committee, and shall contain information needed for a manager to make an initial judgment as to his/her interest in the facility.

(2) The manager’s signature on the bid announcement shall authorize the Agency to release to members of the interview panel information relative to the record of performance of the manager for the preceding twelve (12) month period. In addition, the signature of the manager on the bid announcement authorizes the Tennessee Department of Revenue to release to the Agency all information relative to the tax status of the manager at his/her present or last facility operated.

(3) The bid announcement shall remain open for a period of fourteen (14) days. Upon the closing of the bid announcement, the Agency shall verbally provide to the Secretary of the Committee a complete list of all managers who have submitted bids. The Secretary shall then verbally certify to the Agency the seniority ranking and the certification possessed by each manager who has submitted a bid.

(4) All bid announcements shall be posted in the U.S. Mail, postage pre-paid in a sufficient amount to insure delivery to the licensed managers. Documentation of this process shall be an affidavit attached to the computer-generated mailing list, executed by the State office personnel charged with the responsibility of the mailing, signifying the date of the posting and that all names and addresses on the list correspond with those on the envelopes addressed to the licensed managers.

Authority: T.C.A. งง 4-5-201 et seq., 49-11-601 et seq., 71-1-104, 71-1-105(12), 71-4-603, and 71-4-604(c); 34 C.F.R. ง 395 et seq. and 34 C.F.R. ง 395.7(c). Administrative History: Original rule filed August 30, 1978; effective November 29, 1978. Amendment filed November 8, 1979; effective January 29, 1980. Amendment filed May 25, 1983; effective June 24, 1983. Amendment filed March 10, 1989; effective April 24, 1989. Repeal and new rule filed April 27, 1998; effective August 28, 1998. Repeal and new rule filed April 8, 2005; effective June 22, 2005.

1240-6-5-.03 TRANSFERS

(1) The intent of a transfer is to assure, insofar as possible, employment for a manager who faces displacement not attributable to his/her conduct, attitude or lack of performance. A transfer shall not result in a substantial financial advantage or disadvantage to the manager. In order to assure the effectiveness of this provision, the manager’s sales for the preceding twelve (12) months shall be calculated and compared to the projected sales on the bid announcement. The greater of these two numbers shall be used to determine the range of transfer eligibility. If a vacant facility for which the manager is certified and which produces sales equal to those calculated for the displaced manager (meaning that sales may be fifteen percent (15%) above or fifteen percent (15%) below those calculated), then the manager may be considered, depending upon the manager’s seniority and the number of other managers competing for the same facility.

(3) Transfer eligibility is valid for a period of two years, during which seniority continues to accrue and eligibility is maintained for all benefits.

(4) Transfer eligibility is lost if the manager bids on and receives the award of a facility which produces sales within or which exceeds the manager’s transfer range.

Authority: T.C.A งง 4-5-201 et seq., 49-11-601 et seq., 71-1-104; 71-1-105(12), and 71-4-604(c); 34 C.F.R. ง 395 et seq. and 34 C.F.R. ง 395.7 (c). Administrative History: Original rule filed August 30, 1978; effective November 29, 1978. Amendment filed November 8, 1979; effective January 29, 1980. Amendment filed May 25, 1983; effective June 24, 1983. Amendment filed March 10, 1989; effective April 24, 1989. Repeal and new rule filed April 8, 2005; effective June 22, 2005.

1240-6-5-.04 DEMOTIONS

(1) If a manager is dedicated to the appropriate management of his/her facility and is exerting all of his/her ability to effectively operate the business but is not able to do so because of the demands of the facility, the Agency has the right to remove the manager from the facility as opposed to initiating disciplinary action. Prior to any such removal, documented observations of inadequate performance must be presented to the manager at least thirty (30) days before any removal can take place. This will allow the manager the necessary time to make any adjustments, if any can be made, to improve the efficiency and effectiveness of the facility’s operation.

(a) If, after the expiration of the allotted time, the circumstances have not changed, the Agency shall immediately remove the manager from the facility and place him/her on demotion status and the Ready-for-Employment List. The manager will maintain all benefits for a period of two (2) years and continue to accrue seniority during that period of time.

(b) The manager shall not be eligible to compete for a facility by virtue of the demotion status if the facility's annual sales exceed eighty-five percent (85%) of those of the facility from which the manager was demoted.

Authority: T.C.A งง 4-5-201 et seq., 49-11-601 et seq., 71-1-104; 71-1-105(12), and 71-4-604(c); 34 C.F.R. ง 395 et seq. and 34 C.F.R. ง 395.7 (b ). Administrative History: Original rule filed May 25, 1983; effective June 24,1983. Repeal filed December 6, 1983; effective January 5, 1984. Repeal and new rule filed April 8, 2005; effective June 22, 2005.

1240-6-5-.05 PERMANENT ASSIGNMENT NOT REQUIRING BIDS

(1) If eligibility has been established under chapters 1240-6-5-.03 and 1240-6-5-.04, the Agency may make the award of the facility to the manager, without soliciting bids, provided the manager possesses the appropriate certification(s).

(2) If two or more managers have established such eligibility and are competing for the same facility, then the provisions of chapter 1240-6-5-.01 shall apply and an interview shall be conducted for purposes of selecting the manager for the assignment.

Authority: T.C.A งง 4-5-201 et seq., 49-11-601 et seq., 71-1-104; 71-1-105(12), and 71-4-604(c); 34 C.F.R. ง 395 et seq. and 34 C.F.R. ง 395.7. Administrative History: Original rule filed April 8, 2005; effective June 22, 2005.

1240-6-5-.06 READY-FOR-EMPLOYMENT LIST

(1) The Ready-for-Employment List shall contain the names of all licensed managers who remain certified and who are not permanently assigned to a facility. If certification expires, the manager’s name shall be removed and (s)he will no longer be eligible to compete in the bidding process.

(2) The Agency shall rank all managers on the Ready-for-Employment List in accordance with the amount of seniority which has been accrued and the list shall contain the certification(s) for each manager. Managers having no seniority shall follow on the Ready-for-Employment List according to the date the Agency certified the manager as a licensed manager.

(3) A manager accrues seniority when permanently or temporarily assigned to a facility or when placed on transfer or demotion status.

(4) Managers who have not accrued any seniority for a period of five years will not be allowed to compete for vacant vending facilities through the promotion process until they have successfully completed a refresher training course developed by the Agency with the active participation of the Committee. Such course shall not extend beyond a period of two weeks.

(5) The Agency shall have the responsibility of maintaining the Ready-for-Employment List and shall provide to all members of the Committee a copy together with updates as they occur.

1240-6-5-.07 TEMPORARY MANAGERS

(1) The Agency may, if circumstances require, place a facility under temporary management. The person assigned to the facility on a temporary basis may or may not be a licensed manager. Managers on the Ready-for-Employment List shall be given preference with respect to temporary assignments before the Agency resorts to a non-licensed manager. Except in extreme circumstances, the Agency will consult with the area representatives of the Committee on such temporary assignments.

(2) The Agency, with the active participation of the Committee, shall develop guidelines to review the status of facilities under temporary assignment.

(3) After a manager is selected to operate a facility on a temporary basis, the Instrument of Facility Assignment must be executed on the first day of business and the attachments appended thereto as required by chapter 1240-6-2-.04. The Agency has the authority to customize the IOFA for the temporary manager to be more restrictive than that required of licensed managers.

CHAPTER 1240-6-6 REMOVAL OF MANAGER

1240-6-6-.01 VOLUNTARY WITHDRAWAL OF A MANAGER

(1) If the manager determines that it is in his/her best interest, for whatever reason, to withdraw from a permanently or temporarily assigned facility, (s)he may do so and be immediately placed on the "Ready-for-Employment List" if the withdrawal is not for the purpose of avoiding disciplinary action and thirty (30) days written notice is provided. In the case of such a withdrawal, there shall be no accrual of seniority.

Authority: T.C.A งง 4-5-201 et seq., 49-11-601 et seq., 71-1-104; 71-1-105(12), and 71-4-604(c); 34 C.F.R. ง 395 et seq. and 34 C.F.R. ง 395.(c). Administrative History: Original rule filed August 30, 1978; effective November 29, 1978. Amendment filed May 25, 1983; effective June 24, 1983. Repeal and new rule filed April 27, 1998; effective August 28, 1998. Repeal and new rule filed April 8, 2005; effective June 22, 2005.

1240-6-6-.02 EMERGENCY REMOVAL OF A MANAGER

(1) The Agency shall remove a manager from a facility if a situation develops that prevents a manager from fulfilling his/her obligations or if there is reasonable evidence of a hazardous situation involving the manager which poses an immediate threat to the safety of the manager or others. Except for managers who have a valid drivers license issued by the Department of Safety pursuant to chapter 1340-1-2-.04(8), the Agency considers managers who drive in conjunction with their duties with TBE to be a hazardous situation which poses a threat to the safety of others. This removal may be immediate if the circumstances require. Prior to or within twenty-four (24) hours of the removal, the Agency shall contact the area representative(s) of the Committee and inform them of the action.

(2) In the event of the failure of the manager to fulfill the duties and discharge the responsibilities of operating the facility (for whatever reasons) or documented misconduct jeopardizing the existence of the facility and the image of the program, the Agency may declare that emergency circumstances exist; whereupon the manager may be immediately removed. In the case of such removal, the area representative(s) of the Committee shall be advised of the action prior to or within twenty-four (24) hours of the removal.

(3) In the event of a manager’s removal under paragraphs (1) or (2) of this section, the Agency must, within ten (10) working days, do one of the following:

1240-6-6-.03 PROPERTIES NOT COVERED BY A STATUTORY PRIORITY

(1) When a manager is operating a facility on property which is not protected under federal or state law with respect to priority or preference extended to the Agency, the Agency may, upon the request of property management, be required to remove the manager from the facility, but the Agency is bound to proceed in accordance with the terms and conditions of the permit. If the removal is a result of violation(s) of the rules, the Agency shall take disciplinary action. If the removal is not as a result of inappropriate behavior, the Agency shall place the manager on transfer status or demotion status as the circumstances require.

Authority: T.C.A งง 4-5-201 et seq., 49-11-601 et seq., 71-1-104; 71-1-105(12), and 71-4-604(c); 34 C.F.R. ง 395 et seq. and 34 C.F.R. ง 395.7(b). Administrative History: Original rule filed August 30, 1978; effective November 29, 1978. Amendment filed June 9, 1981; effective August 18, 1981. Amendment filed May 25, 1983; effective June 24, 1983. Amendment filed November 6, 1985; effective December 6, 1985. Amendment filed December 11, 1986; effective January 25, 1987. Amendment filed March 10, 1989, effective April 24, 1989. Repeal and new rule filed April 27, 1998; effective August 28, 1998. Repeal and new rule filed April 8, 2005; effective June 22, 2005.

1240-6-6-.04 DUE PROCESS FOR MANAGERS WHO ARE REMOVED

(1) If the manager is not returned to the facility within ten (10) working days of removal from the facility under chapters 1240-6-6-.02 or 1240-6-6-.03, an informal due process hearing by a hearing officer designated by the Commissioner of the Department of Human Services shall be held at the manager’s request within the ten (10) day period following removal from the facility. The hearing officer shall not have been involved in the decision to remove the manager.

(2) The purpose of the hearing, which shall be informal in nature, shall be to permit the manager to present reasons why the removal is not appropriate. The Agency shall present reasons to the hearing officer to establish probable cause to support the immediate removal of the manager. The Agency shall have the burden of proof in the hearing.

(3) The hearing officer shall make a ruling immediately following the conclusion of the hearing, reduce the findings and the conclusions to writing, and supply copies of the ruling to the manager or the manager’s representative and to the Agency. The hearing report shall become a part of the record in any disciplinary action which is initiated by the Agency involving the manager; provided, however, that the report’s findings and conclusions shall not become evidence in such proceeding, which shall be de novo. If the manager is not returned to the facility, the Agency shall proceed in accordance with chapter 1240-6-6-.03 within the ten (10) day period and the manager may appeal for an evidentiary fair hearing pursuant to chapter 1240-6-11.

CHAPTER 1240-6-7 TRAINING PROGRAM

1240-6-7-.01 ENTRY LEVEL TRAINING

(a) All entry-level training for potential managers shall be conducted at a site jointly determined by the Agency and Committee. All candidates for the training must be referred by the Vocational Rehabilitation Program. Each candidate will undergo an evaluation to determine if they have the skills to be successful managers.

(b) The Agency shall conduct a criminal background check of all candidates. Any candidate who has been convicted of a felony will not be permitted into the training program.

(c) The Vocational Rehabilitation Counselor will obtain a drug screening on all candidates before they are referred for entry level training. Any candidate with a documented history of substance abuse during the preceding twelve (12) months shall not be eligible for admission into entry level training.

(d) After the evaluation, the Director of Services for the Blind and Visually Impaired or a designated member of the management staff shall interview each candidate and review the evaluation and recommendations of the staff, the criminal background check, and an essay that the candidate will be required to submit. Based upon this information and responses to interview questions, the candidate will either be accepted or rejected. The duration of the academic training and the on-the-job training, as well as the curriculum to be taught shall be determined by the Agency with the active participation of the Committee.

(2) After the candidates have successfully completed all course materials as evidenced by test scores, each shall complete on-the-job training with a currently licensed manager. The Agency shall select the manager with whom the candidate shall work and will require the manager to provide progress reports with respect to the candidate's performance. After successfully completing on-the-job training, the candidate shall be issued a license certifying that the candidate is a licensed manager in the State of Tennessee. If the candidate cannot successfully meet the requirements imposed by on-the-job training, and the Agency does not receive a recommendation from the manager selected to conduct the training, the Agency shall not issue the license.

(3) When the license is issued, the manager shall be certified only in counter service, vending machine operations and a combination of those two areas.

Authority: T.C.A งง 4-5-201 et seq., 49-11-601 et seq., 71-1-104; 71-1-105(12), and 71-4-604(c); 34 C.F.R. ง 395 et seq. and 34 C.F.R. ง 395.11. Administrative History: Original rule filed August 30, 1978; effective November 29, 1978. Amendment filed June 9, 1981; effective August 18, 1981. Amendment filed May 25, 1983; effective June 24, 1983. Amendment filed December 11, 1986; effective January 25, 1987. Repeal and new rule filed April 27, 1998; effective August 28, 1998. Repeal and new rule filed April 8, 2005; effective June 22, 2005.

1240-6-7-.02 CERTIFICATION TRAINING

(1) At the beginning of each calendar year, the Agency shall publish and circulate to all licensed managers a schedule of training dates for certification in On-Site Food Preparation, Cafeteria, and Inmate Commissary Management. Those managers who lost certification in Counter Service or Vending prior to the implementation of these rules may request training in these areas. This training shall be made available to any of these eligible managers within sixty (60) days from the date the Agency receives the request.

(2) The prerequisites for cafeteria management are that the manager has certification in on-site food preparation and has accrued twelve (12) months of seniority from a temporary or permanent assignment.

Authority: T.C.A งง 4-5-201 et seq., 49-11-601 et seq., 71-1-104; 71-1-105(12), and 71-4-604(c); 34 C.F.R. ง 395 et seq. and 34 C.F.R. ง 395.3(11). Administrative History: Original rule filed August 30, 1978; effective November 29, 1978. Amendment filed May 25, 1983; effective June 24, 1983. Repeal and new rule filed April 27, 1998; effective August 28, 1998. Repeal and new rule filed April 8, 2005; effective June 22, 2005.

1240-6-7-.03 RETRAINING FOR ESTABLISHED MANAGERS

1) The Agency shall provide specially designed retraining courses for managers who request retraining in a specific area. If the TBE Consultant/Specialist identifies an area in which the manager has a significant deficiency that can be corrected by training, the TBE Consultant/Specialist shall arrange specific remedial training to correct the deficiencies, provided that the findings of the TBE Consultant/Specialist are documented and a copy of the documentation is furnished to the manager. Managers who refuse such retraining may be subject to probation and subsequent termination of license.

1240-6-7-.04 UPWARD MOBILITY

(1) Each licensed manager must attend one (1) Upward Mobility training session every year in order to maintain his/her certification(s), unless the manager’s certification(s) have otherwise been extended as provided in chapter 1240-6-4-.02(5).

(2) For purposes of maintaining certification(s), the Agency shall, on an annual basis, provide for a minimum of one Upward Mobility training session in the cities of Knoxville, Chattanooga, Nashville, Memphis, Jackson, and Johnson City. Each manager will be required to attend the Upward Mobility training session in the city closest to his/her facility. Each session shall last for two days, totaling a minimum of twelve (12) hours, and the sessions shall cover topics of interest to be determined by the Agency with the active participation of the Committee.

(3) Managers choosing to attend Upward Mobility more often than once a year or outside of their immediate region must do so at their own expense.

Authority: T.C.A งง 4-5-201 et seq., 49-11-601 et seq., 71-1-104; 71-1-105(12), 71-1-106, and 71-4-604(c); 34 C.F.R. ง 395 et seq. and 34 C.F.R. ง 395.14(b)(5). Administrative History: Original rule filed April 8, 2005; effective June 22, 2005.

1240-6-7-.05 STATEWIDE MANAGERS' MEETING

(1) The Agency and the Committee shall jointly sponsor and develop a statewide meeting for all licensed managers which will be held once annually if funds are available for the meeting. The development of the agenda shall be a common effort by the Agency and the Committee. The time and place shall be determined by the Agency and the Committee.

Authority: T.C.A งง 4-5-201 et seq., 49-11-601 et seq., 71-1-104; 71-1-105(12), 71-1-106, and 71-4-604(c); 34 C.F.R. ง 395 et seq. and 34 C.F.R. ง 395.3(11). Administrative History: Original rule filed April 8, 2005; effective June 22, 2005.

1240-6-7-.06 REIMBURSEMENT

(1) The Agency shall reimburse licensed managers who participate in Agency-conducted certification training, Upward Mobility, and/or statewide managers’ meetings if out-of-town travel is necessary. Reimbursement shall be limited to travel, lodging, and meals in accordance with Tennessee Comprehensive Travel Regulations. Managers who have not accrued any seniority for a three-year period shall not be eligible for such reimbursement and must pay their own travel expenses.

Authority: T.C.A งง 4-5-201 et seq., 49-11-601 et seq., 71-1-104; 71-1-105(12), 71-4-301, and 71-4-604(c); 34 C.F.R. ง 395 et seq. and 34 C.F.R. ง 395.3(11). Administrative History: Original rule filed April 8, 2005; effective June 22, 2005.

1240-6-7-.07 POST-EMPLOYMENT SERVICES

(1) The Agency will make available post-employment services to all licensed managers to ensure that each has the opportunity to achieve maximum vocational potential. Such services shall be provided by the Agency’s Vocational Rehabilitation Program.

1240-6-7-.08 AGENCY ASSURANCES

(1) Pursuant to the Vocational Rehabilitation Act of 1973, as amended, the Agency shall ensure that effective programs of vocational training and other services are provided to blind persons as vocational rehabilitation services.

(2) The Agency specifically ensures that all candidates applying for, or participating in, entry level training, certification training, retraining, and upward mobility programs shall not be subjected to discrimination on the basis of race, sex, age, disability, creed, color, national origin, religion, or political affiliation.

CHAPTER 1240-6-8 VENDING FACILITY EQUIPMENT

1240-6-8-.01 FACILITY EQUIPMENT

(1) The Agency shall provide sufficient equipment for the use of the licensed manager. This equipment shall remain the property of the Agency. Ownership of vending facility equipment other than that provided by the Agency shall not be vested in the Agency.

(2) No alteration, change, addition, or removal of Agency equipment shall be made without prior approval of the Agency.

(3) The manager shall report immediately any incident, theft, or defacement of equipment.

(4) A manager, with prior approval from the TBE Consultant/Specialist, may lease equipment for use in the operation of the vending facility. In no event shall the Agency be held liable for the manager’s obligation under the terms of any lease or for any repairs associated with the leased equipment. The manager’s obligations to any lessor shall remain in effect without regard to removal or reassignment of any manager for any reason. For purposes of determining the amount of the manager’s set-aside assessment, the proceeds derived from sales of merchandise from leased equipment shall be regarded as income to the vending facility, provided that all expenses for leasing of equipment shall be deductible as a business expense from the gross income of the facility.

(5) Managers who want to place vending machines on full service or subcontract any part of their operations may do so only after getting prior approval from the Agency. The determining factors on whether or not such a request will be approved by the Agency will be profitability, quality of service, availability of adequate storage, and the desires of property management.

Authority: T.C.A งง 4-5-201 et seq., 49-11-601 et seq., 71-1-104; 71-1-105(12), 71-4-405(b), and 71-4-604(c); 34 C.F.R. ง 395 et seq. and C.F.R. ง 395.3(a)(5). Administrative History: Original rule filed December 11, 1986; effective January 25, 1987. Repeal and new rule filed April 8, 2005; effective June 22, 2005.

1240-6-8-.02 MAINTENANCE AND REPAIR

(1) The Agency shall maintain in good repair, or cause to be maintained in good repair, all Agency vending facility equipment and shall replace, or cause to be replaced, worn out or obsolete Agency equipment as required to assure the continued successful operation of the facility. Where used equipment is furnished to replace non-functioning, worn out or obsolete equipment, the Agency shall insure that such Agency equipment is in good working order and shall make any necessary repairs prior to installing such equipment at the vending facility.

(3) Repair and maintenance will be performed using set-aside monies and federal dollars if available. If budgetary constraints require it, the Agency, with the active participation of the Committee, shall develop procedures to be incorporated into the Operations Manual that allow for a co-payment by the manager on each repair call. When such services are required, the Agency will repair the Agency income-producing equipment, or cause it to be repaired, within forty-eight (48) hours of notification by the manager, provided that parts can be obtained and the equipment is out of warranty. In the event that the Agency fails to fulfill its obligation under this subsection, the manager shall have the right to withhold the payment of set-aside assessments which are, or become, due until the Agency equipment is repaired or replaced.

Authority: T.C.A งง 4-5-201 et seq., 49-11-601 et seq., 71-1-104; 71-1-105(12), 71-4-405(b), and 71-4-604(c); 34 C.F.R. ง 395 et seq. and 34 C.F.R. ง 395.3(a)(5). Administrative History: Original rule filed December 11, 1986; effective January 25, 1987. Repeal and new rule filed April 8, 2005; effective June 22, 2005.

CHAPTER 1240-6-9 SETTING ASIDE OF FUNDS

1240-6-9-.01 SET-ASIDE ASSESSMENT

(1) The Set-Aside Assessment (or administrative fee) is a charge levied against the net proceeds of each vending facility. The manager is responsible for the payment to the Agency of this assessment each month. It represents a certain percentage of the net proceeds realized as a result of the facility’s operation. Incentives and/or discounts may be offered to those managers who meet established performance standards, pay fees on-line, hire legally blind employees, or meet other established requirements.

(2) Net proceeds are determined from net sales, less merchandise cost and other allowable expenditures, plus commissions, vending machine income remitted to the manager under chapter 1240-6-14, and rebates and bonuses paid to the manager. The amount of set-aside assessment may not be deducted as an expense in computing net proceeds. All funds collected as set-aside assessments are deposited in an interest-bearing account.

(3) The percentage of net proceeds to be paid to the Agency by each manager is predicated upon a schedule negotiated between the Agency and the Committee, determined to be sufficient for the TBE’s operation, while at the same time allowing for the retention of reasonable reserves by the Agency. In no event shall any negotiated schedule exceed a maximum of fifteen (15) percent as prescribed by T.C.A. ง 71-4-509, nor shall any new schedule be implemented without the approval of the U.S. Rehabilitation Services Administration.

Authority: T.C.A งง 4-5-201 et seq., 49-11-601 et seq., 71-1-104; 71-1-105(12), 71-4-509, 71-4-604 and 71-4-604(c); 34 C.F.R. ง 395 et seq. and 34 C.F.R. ง 395.9(c). Administrative History: Original rule filed August 30, 1978; effective November 29, 1978. Amendment filed May 25, 1983; effective June 24, 1983. Amendment filed December 11, 1986; effective January 25, 1987. (Formerly numbered as 1240-6-8-.01) Repeal and new rule filed April 27, 1998; effective August 28, 1998. Repeal and new rule filed April 8, 2005; effective June 22, 2005.

1240-6-9-.02 PURPOSE FOR WHICH SET-ASIDE ASSESSMENTS MAY BE USED

(1) Pursuant to the provisions of 34 C.F.R. งง 395.8 and 395.9, funds derived from set-aside assessments can only be used for the following purposes:<

(2) The Agency shall maintain sufficient records to assure the reasonableness of the use of set-aside assessments in the operation of TBE and for those purposes designated.

Authority: T.C.A งง 4-5-201 et seq., 49-11-601 et seq., 71-1-104; 71-1-105(12), 71-4-501 et seq., and 71-4-604(c); 34 C.F.R. ง 395 et seq. and 34 C.F.R. 395.9(c). Administrative History: Original rule filed August 30, 1978; effective November 29, 1978. Amendment filed November 8, 1979; effective January 29, 1980. Amendment filed May 25, 1983; effective June 24, 1983. Amendment filed November 6, 1985; effective December 6, 1985. Amendment filed December 11, 1986; effective January 25, 1987. (Formerly numbered as 1240-6-8-.02). Amendment filed March 10, 1989, effective April 24, 1989. Repeal and new rule filed April 27, 1998, effective August 28, 1998. Repeal and new rule filed April 8, 2005; effective June 22, 2005.

1240-6-9-.03 REQUIREMENTS FOR FINANCIAL REPORTING

(1) Each vending facility manager must file with the Agency a monthly financial report of his/her business operation. The report and the payment of set-aside assessments currently due the Agency shall be postmarked on or before the 8th day of the month following the month in which the business was transacted. If the Agency’s technology permits, the manager may be afforded the opportunity to file his/her reports and pay fees on-line provided the deadline of the 8th day of the month would still be applicable.

(2) If a manager fails, without the showing of good cause, to file the monthly financial report and/or fails to make payment of set-aside assessments as required by these rules, the manager shall be placed on probation for a period of thirty (30) days pursuant to chapter 1240-6-3-.02(1) for either one or both of these infractions. For each offense, the Agency shall assess the manager a penalty of $25.00.

(3) Falsification of records by the manager, as validated by the Agency or other state entity, will result in the termination of a manager’s license without placing the manager on probation. The termination will be preceded by a thirty (30) day written notice by the Agency advising the manager of such action and his/her right to appeal in accordance with chapter 1240-6-11.

Authority: T.C.A งง 4-5-201 et seq., 49-11-601 et seq., 71-1-104; 71-1-105(12), 71-4-501 et seq., and 71-4-604(c); 34 C.F.R. ง 395 et seq. and 34 C.F.R. ง 395.9(c). Administrative History: Original rule filed August 30, 1978; effective November 29, 1978. Amendment filed May 25, 1983; effective June 24, 1983. Amendment filed March 10, 1989; effective April 24, 1989. Repeal and new rule filed April 27, 1998; effective August 28, 1998. Repeal and new rule filed April 8, 2005; effective June 22, 2005.

CHAPTER 1240-6-10 FACILITY OPERATIONAL REQUIREMENTS

1240-6-10.06 Public Relations With Customers, Suppliers, and Property Management Officials

1240-6-10-.01 DAYS AND HOURS OF OPERATION

(1) It shall be the responsibility of the manager to comply with the terms of the permit and/or the bid announcement regarding the days and hours designated for the facility to be open for business. It is required that the manager be present at least five (5) days and a minimum of thirty (30) hours each week; however, it is not necessary for the manager to be present during all of the hours that the facility is open. Exceptions to this provision must be approved in writing by the appropriate Business Enterprises Supervisor. In the absence of the manager, it is essential that a qualified employee be on duty to insure that all customers' needs are being met and that the facility is otherwise being operated in compliance with all rules and regulations which govern its operation.

(2) During periods when the manager is absent from the facility as a result of advanced training offered by the Agency, Upward Mobility seminars, annual vacations or short-term illnesses, the manager shall designate an employee to assume the responsibilities of the business . The manager shall advise the Agency of the person who has been selected to operate the facility.

(a) If it is anticipated or if the manager is absent from the facility for more than twenty (20) consecutive working days as a result of an illness or recently incurred disability, the manager must apply for medical sick leave and provide information as required by the Agency regarding the illness or disability.

(d) In the event the illness and/or disability are projected to be of a prolonged nature, the Agency shall grant up to a maximum of one-year sick leave. The maximum sick leave of one year is a total accrual during any five-year period of the licensed manager’s tenure as a licensed manager, excluding minor illnesses which do not exceed twenty (20) consecutive working days. If, due to medical reasons, the manager wants to be relieved of the responsibilities of the facility and the manager’s physician provides to the Agency medical documentation that the manager’s illness and/or disability is so severe that (s)he will be precluded from managing the facility, the Agency shall relieve the manager of the responsibilities and upon request, place him/her on medical transfer status, at which time the Agency shall declare the facility to be ready to be announced for bid or place it under temporary management. Under these circumstances, the manager’s transfer eligibility shall be valid for a period of two (2) years.

Authority: T.C.A งง 4-5-201 et seq., 49-11-601 et seq., 71-1-104; 71-1-105(12), and 71-4-604(c); 34 C.F.R. ง 395 et seq. and 34 C.F.R. ง 395.7(c). Administrative History: Original rule filed August 30, 1978; effective November 29, 1978. Amendment filed May 25, 1983; effective June 24, 1983. Amendment filed December 11, 1986; effective January 25, 1987. (Formerly numbered as 1240-6-9-.01). Repeal and new rule filed April 27, 1998; effective August 28, 1998. Repeal and new rule filed April 8, 2005; effective June 22, 2005.

1240-6-10-.02 PERSONAL APPEARANCE, HYGIENE, AND FACILITY CLEANLINESS

(1) It shall be the obligation and responsibility of the manager to, at all times, project the image of personal cleanliness, which includes being appropriately groomed and dressed appropriately in accordance with the environment of the facility location, any terms of the permit or contract, TBE’s dress code, and/or any other dress code imposed by property management on its employees. The manager must assure that all employees adhere to the same standard. A violation of this rule by the employee shall be treated as a violation committed by the manager.

(2) The Agency, with the active participation of the Committee, shall develop a standardized dress code for managers and their employees. A copy of the dress code will be included in the Operations Manual and will be strictly enforced.

(3) Irrespective of the circumstances, the facility and all of its equipment must be kept clean and sanitary at all times. The manager will adhere to any standardized sanitation procedures developed by the Agency with the active participation of the Committee.

(4) The Business Enterprises Consultant/Specialist shall conduct periodic inspections of the vending facilities in accordance with policies and procedures developed by the Agency, with the active participation of the Committee, to ensure compliance with this section.

(5) All Health Department rules and regulations shall be observed in every respect.

Authority: T.C.A งง 4-5-201 et seq., 49-11-601 et seq., 71-1-104; 71-1-105(12), and 71-4-604(c); 34 C.F.R. ง 395 et seq. and 34 C.F.R. ง 395.7(c). Administrative History: Original rule filed August 30, 1978; effective November 29, 1978. Amendment filed May 25, 1983; effective June 24, 1983. Amendment filed December 11, 1986; effective January 25, 1987. (Formerly numbered as 1240-6-9-.01). Amendment filed March 10, 1989; effective April 24,1989. Amendment filed September 28, 1993; effective December 13, 1993. Repeal and new rule filed April 27, 1998; effective August 28, 1998. Repeal and new rule filed April 8, 2005; effective June 22, 2005.

1240-6-10-.03 FACILITY MERCHANDISE

(1) The merchandise available for sale in a vending facility shall be in compliance with the terms and conditions of the permit. Substantial deviations from this approved merchandise shall not be made by the manager without first seeking consent of the Agency and property management. The merchandise available for sale may be prepared on or off-site, depending upon the facility equipment, the classification of the facility, and the Health Department rules to be observed. The merchandise may be sold manually and/or dispensed through the use of vending machines.

(2) The Agency shall provide the initial stock for use by the manager. It is the obligation and responsibility of the manager to have the initial level of merchandise in the facility at all times and, if necessary to meet customers' demands, the inventory shall be increased by the manager in an amount sufficient to address the identified needs. It is required that the manager has sufficient quantity and variety of merchandise in the facility in order to satisfy the intent of this subsection. This includes properly stocking all vending machines in the facility.

(3) The value of the inventory is to be calculated at wholesale cost. Ownership of the initial stock or its current wholesale cash value shall be vested in the Agency. Ownership of all stock and/or cash above the initial inventory level shall be vested in the manager. If the TBE Consultant/Specialist suspects that the merchandise inventory is below the initial level, a complete inventory may be taken by the TBE Consultant/Specialist. The manager shall be given prior day notice of the inventory to be conducted.

(4) At the beginning of each calendar year, the manager shall conduct an inventory of all merchandise and supplies in the facility and submit it to his/her TBE Consultant/Specialist on or before February 15th of each year. In the event that a financial analysis is deemed to be appropriate at some subsequent time prior to the next scheduled inventory, the previous record referred to above shall be used as a beginning point, so that the collection of other data will be meaningful when all of it is assembled for final review.

(5) The Agency, with the active participation of the Committee, shall develop inventory control procedures, which shall be incorporated into the Operations Manual.

(6) Managers who leave TBE for whatever reason are not relieved of their responsibilities to repay any inventory shortages. The Agency may use methods that it deems appropriate to collect any such indebtedness.

(7) The manager shall determine the pricing of the merchandise to be sold in the facility provided that it is reasonably compatible with that of the vicinity competition. In some cases, pricing may be addressed in the permit and the manager is required to comply with any such provisions.

Authority: T.C.A งง 4-5-201 et seq., 49-11-601 et seq., 71-1-104; 71-1-105(12), and 71-4-604(c); 34 C.F.R. ง 395 et seq. and 34 C.F.R. ง 395.7(c). Administrative History: Original rule filed August 30, 1978; effective November 29, 1978. Amendment filed May 25, 1983; effective June 24, 1983. Amendment filed December 11, 1986, effective January 25, 1987. (Formerly numbered as 1240-6-9-.01) Repeal and new rule filed April 27, 1998; effective August 28, 1998. Repeal and new rule filed April 8, 2005; effective June 22, 2005.

1240-6-10-.04 STANDARDS OF PERFORMANCE

(1) The Agency, with the active participation of the Committee, shall establish standards of performance for all managers. These standards, along with procedures for addressing managers who do not meet the standards, shall be incorporated into the Operations Manual. The Agency shall provide periodic reports on how the manager is performing in relation to the established standards.

(2) If a manager fails to meet any of the established standards, the TBE Consultant/Specialist and the manager will jointly develop a plan of action that will enable the manager to make the necessary improvements. It will be the responsibility of the manager to implement agreed upon action steps to improve performance.

Authority: T.C.A งง 4-5-201 et seq., 49-11-601 et seq., 71-1-104; 71-1-105(12), and 71-4-604(c); 34 C.F.R. ง 395 et seq. and 34 C.F.R. ง 395.7(c). Administrative History: Original rule filed August 30, 1978; effective November 29, 1978. Amendment filed May 25, 1983; effective June 24, 1983. Amendment filed December 11, 1986; effective January 25, 1987. (Formerly numbered as 1240-6-9-.01). Amendment filed March 10, 1989; effective April 24,1989. Repeal and new rule filed April 27, 1998; effective August 28, 1998. Repeal and new rule filed April 8, 2005; effective June 22, 2005.

1240-6-10-.05 PARTNERING WITH PRIVATE ENTITIES

(1) With prior approval from the Agency, managers may partner with private entities in order to meet TBE’s obligations under the permit. This may include placing vending machines on full service pursuant to chapter 1240-6-8-.01(5). Additionally, a manager may choose to partner with a private company to provide other portions of the facility operation if prior approval is secured from the Business Enterprises Consultant/Specialist. The determining factors on whether or not such a request will be approved are profitability, the quality of the service, the availability of storage, and the desires of property management. A partnering arrangement does not relieve the manager of the responsibility to ensure that service is provided in accordance with these rules and regulations and the Operations Manual.

(2) There may be facilities where the Agency, after consultation with the area representative(s) of the Committee, chooses to partner with a private entity to help it meet its obligations to property management. If the Agency has entered into such a partnering agreement with a private entity, any licensed manager who chooses to bid on the facility shall be obligated to work with the private entity in such a way as to ensure the provision of quality services.

Authority: T.C.A. งง 4-5-201 et seq., 71-1-105(12), and 71-4-604(c); 34 C.F.R. ง 395.7(c). Administrative History: Original rule filed April 8, 2005; effective June 22, 2005.

1240-6-10-.06 PUBLIC RELATIONS WITH CUSTOMERS, SUPPLIERS, AND PROPERTY MANAGEMENT OFFICIALS

(1) The manager must be committed to the highest standard of honesty, integrity, and responsibility in the ethical conduct of the vending facility. The manager’s conduct in all matters must reflect positively on TBE and blind persons in general. The manager shall not engage in any conduct that might bring TBE into disrepute. The Agency, with the active participation of the Committee, shall develop and incorporate into the Operations Manual an ethics statement that must be signed by a manager as a condition of licensing.

(2) In addition to providing a high quality food service and as a means of promoting sales, it is the responsibility of the manager and his/her employees to create a pleasant and wholesome atmosphere in the facility for the customers. It is required that patrons of the business be served promptly and treated cheerfully and courteously. The manager shall accommodate, within reasonable limits, requests normally expected in any food service operation. This does not include extending credit to customers, although the manager may do so if (s)he wishes, but it must be realized that losses as a result thereof are those of the manager, and the Agency assumes no responsibility.

(3) The manager is free to negotiate with any purveyors of merchandise and/or supplies. Under no circumstances may a manager purchase merchandise and/or supplies from a corporation, partnership or other legal entities if the manager and/or an immediate family member have an interest of any type in such organizations. Normally, managers are required to purchase merchandise and supplies from recognized wholesalers; however, an exception to this provision shall be made to allow managers to purchase from retailers when it is financially advantageous to do so, or to purchase from other managers when it is convenient, provided that in no event shall the manager reflect a higher merchandise cost than (s)he was actually charged.

(4) Irrespective of the purveyor, the manager shall pay for the merchandise pursuant to the terms which are arranged with the supplier. Failure to do so shall constitute a violation of this subsection and result in a ten (10) days notice to the manager to liquidate the indebtedness. If the manager does not pay within the ten (10) day limitation, the Agency shall initiate disciplinary action.

(5) The manager shall comply with all reasonable requests of property managing officials if the requests are within the ability of the manager to meet and not in conflict with these rules or the provisions of the permit. The manager is free to accommodate the property-managing officials in other areas if (s)he chooses to do so in order to promote good public relations. If differences arise between the manager and property-managing officials, the manager shall immediately contact his/her TBE Consultant/Specialist so that a resolution might be quickly achieved.

(6) In the event that the Agency receives a complaint regarding the manager, his/her employees, and/or the operation of the facility, the TBE Consultant/Specialist will immediately investigate to determine the validity of the complaint and document the findings. If the complaint is found to be valid, the TBE Consultant/Specialist and the manager shall immediately formulate a plan of action to address the concern of the complainant.

(a) If the complaint is in writing, it shall be immediately given to the manager. If it is validated as correct, the manager shall have thirty (30) days to file a response with the Agency. Both the complaint and the response shall be placed in the permanent record for a period of one (1) year, after which time, it will automatically be purged from the record. This does not mean that the manager has thirty (30) days in which to correct problems that have been validated by the TBE Consultant/Specialist.

Authority: T.C.A. งง 4-5-201 et seq., 71-1-105(12), and 71-4-604(c); 34 C.F.R. ง395.7(c). Administrative History: Original rule filed April 8, 2005; effective June 22, 2005.

1240-6-10-.07 DRUG-FREE ENVIRONMENT

(1) The TBE vending facility is a drug-free environment. The manager shall not at any time participate in the use of illegal drugs. If there is reasonable evidence to suggest that a manager may be in violation of this section, the Agency may require that the manager undergo a drug screening at a location specified by the Agency and at the Agency’s expense. If it is determined that the manager is using illegal drugs, an emergency situation may be declared pursuant to chapter 1240-6-6-.02.

Authority: T.C.A. งง 4-5-201 et seq., 71-1-105(12), and 71-4-604(c); 34 C.F.R. 395.7(c). Administrative History: Original rule filed April 8, 2005; effective June 22, 2005.

1240-6-10-.08 NON-DISCRIMINATION

The manager of a TBE vending facility shall not discriminate against any present or prospective customer, supplier, employee, or other individual who might come into contact with the vending facility on the basis of sex, age, disability, religion, color, creed, national origin, or political affiliation.

Authority: T.C.A. งง 4-5-201 et seq., 71-1-105(12), and 71-4-604(c); 34 C.F.R. ง 395.7(c). Administrative History: Original rule filed April 8, 2005; effective June 22, 2005.

1240-6-10-.09 INSURANCE COVERAGE

(1) Each permanently assigned or temporarily assigned manager shall be required to obtain and maintain public liability and products liability insurance coverage with limits as specified by the permit (or as designated by the Agency) and naming property management as co-insured. In addition, the manager shall be required to obtain workman’s compensation insurance if required by State law as a consequence of the number of employees. If a vehicle is required in the operation of the vending facility, the manager shall be responsible for ensuring that such vehicles are adequately insured. All expenses for insurance coverage are deductible as a business expense to the facility. Each manager is required to provide the Agency with certificates of insurance, validating that the protection is in force.

Authority: T.C.A. งง 4-5-201 et seq., 71-1-105(12), and 71-4-604(c); 34 C.F.R. ง 395.7(c). Administrative History: Original rule filed April 8, 2005; effective June 22, 2005.

1240-6-10-.10 TAXES, PERMITS, AND LICENSES

(1) The manager shall be responsible for paying all applicable state, federal, and local taxes in a timely manner and securing any necessary permits or licenses required for the operation.

Authority: T.C.A. งง 4-5-201 et seq., 71-1-105(12), and 71-4-604(c); 34 C.F.R. ง 395.7(c). Administrative History: Original rule filed April 8, 2005; effective June 22, 2005.

1240-6-10-.11 RECORD KEEPING AND REPORTING

(1) It shall be the responsibility of each manager to establish, maintain, and retain financial, payroll, personnel, and operational records as required by law or by policies contained in the Operations Manual. The vending facility manager is required to maintain all such records for a minimum of four years. In addition, managers are expected to comply with record retention requirements of other governmental bodies.

(2) Reports required by TBE policies developed with the active participation of the Committee shall be filed promptly with the Agency. The reports and supporting documentation will be periodically reviewed by the Agency and will be subject to examination, analysis, and/or audit at any time by Fiscal Services or Internal Audit staff. All examinations, analysis, and audits will be conducted in accordance with generally accepted auditing procedures. This provision shall not be construed to restrict any audit required by other entities of government and authorized by federal or state laws.

(3) The manager must open a separate banking account in which sufficient funds are maintained to conduct the business of the vending facility.

(4) Each vending facility manager must immediately report to the Agency, in writing, any findings resulting from a governmental audit, either state or federal, or any citation for critical violation of any health regulations or any state law related to the operation of the vending facility.

(5) Any bankruptcy action filed by the manager which directly or indirectly affects the Agency or creditors of the facility, must be reported to the Agency, in writing, within five days of filing.

Authority: T.C.A. งง 4-5-201 et seq., 71-1-105(12), and 71-4-604(c); 34 C.F.R. ง 395.7(c). Administrative History: Original rule filed April 8, 2005; effective June 22, 2005.

CHAPTER 1240-6-11 ADMINISTRATIVE REVIEW, EVIDENTIARY FAIR HEARING ANDARBITRATION

1240-6-11-.01 ADMINISTRATIVE REVIEW

(1) A manager who is dissatisfied with any action arising from the operation or administration of TBE may ask for a review of the action by filing a written request within thirty (30) days of the Agency’s action with the Director of Services for the Blind and Visually Impaired with the Department of Human Services, or the manager may file an appeal pursuant to chapter 1240-6-11-.02. If the manager elects to have a review conducted by the Director of Services for the Blind and Visually Impaired, the written request for such review, which may be filed by the manager or a chosen representative, must specify the action(s) to be reviewed and the reason(s) for the manager’s dissatisfaction.

(2) Upon receipt of a request for an administrative review, the Director of Services for the Blind and Visually Impaired shall designate a member of the management staff who shall have fifteen (15) working days to file a written response, outlining the reason or reasons for any action objected to by the manager. In filing his/her response, the Agency representative shall forward a copy to the manager and to the manager’s representative, if designated.

(3) Upon receipt of the response from the Agency representative, the manager or his/her representative shall have ten (10) working days in which to file any objections or make reply, after which the Director of Services for the Blind and Visually Impaired shall evaluate the materials submitted and issue a written decision thereon. The decision shall be issued within fifteen (15) working days following the close of the period allowed for the manager’s reply. The manager or a chosen representative may file an appeal in accordance with chapter 1240-6-11-.02 if the decision issued by the Director of Services for the Blind and Visually Impaired fails to resolve the manager’s dissatisfaction.

Authority: T.C.A งง 4-5-201 et seq., 49-11-601 et seq., 71-1-104; 71-1-105(12), and 71-4-604(c); 34 C.F.R. ง 395 and 34 C.F.R. ง 395 et seq. Administrative History: Original rule filed August 30, 1978; effective November 29, 1978. Amendment filed June 9, 1981; effective August 18, 1981. Amendment filed May 25, 1983; effective June 24,1989. Amendment filed March 10, 1989; effective April 24, 1989. Amendment filed April 27, 1998; effective August 28, 1998. Repeal and new rule filed April 8, 2005; effective June 22, 2005.

1240-6-11-.02 EVIDENTIARY FAIR HEARING

(1) The Agency shall provide the manager an opportunity to seek remedy for his/her dissatisfaction with Agency action arising from the operation or administration of TBE through an evidentiary fair hearing. The manager or a representative selected by the manager shall request an evidentiary fair hearing in writing within thirty (30) days of the agency's action from which the grievance arises or within fifteen (15) days following the manager’s receipt of a decision issued by the director of services for the Blind Division pursuant to rule 1240-6-11-.01. All rules on file pertaining to the Department's procedures for conducting fair hearings will apply to the request for a fair TBE hearing.

(2) A request for an evidentiary fair hearing, filed by the manager, or a representative selected by the manager, shall be made to the Agency on an official appeals form and shall be completed and signed by the manager or his/her representative.

(a) The request shall be sent to the Agency office in which the manager is supervised. A copy of the request shall be sent to the manager’s representative on the Committee of Blind Vendors.

(3) The evidentiary fair hearing shall be conducted in accordance with the following:

(a) Time and Place of Hearing -
A fair hearing shall be held in the state office at a time and place convenient to the manager.
(b) Notice of Fair Hearing -
A notice of hearing shall be given to the licensee at least fifteen (15) working days prior to the date set for the hearing.
(c) Maximum Time Limit -
The overall time limit for processing a fair hearing is ninety days, except when a hearing is delayed for:
- 1. Illness of the manager, or
- 2. Delay in obtaining evidence because of circumstances beyond the control of the manager or the Agency. The time limit applies to the period extending from the date the original request is received by the Agency until the date of the decision.
(d) Hearing Officer -
An administrative judge shall be an impartial official, assigned by the Commissioner or his/her designated representative, to serve as hearing officer.
(e) Right of Counsel -
The licensee is entitled to legal counsel or other representation. Such counsel shall be at his/her own expense or he may wish to avail himself of any legal services available in the community at little or no cost.
(f) Issuance of Subpoenas -
Subpoenas shall be issued in accordance with the state rules governing the Department of Human Services Administrative Procedures Division.
(g) Rules of Evidence -
The administrative judge shall exercise every reasonable effort to obtain the most credible evidence of fact in the case.
(h) Presentation of Case -
The party shall be given every opportunity to present his/her case, examine and cross-examine witnesses, present argument and rebut evidence.
(i) Transcript -
A transcript shall be made of the oral evidence and shall be made available to the parties upon request. The Agency shall pay all transcript costs and other costs associated with the conduct of the hearing.
(j) Content of Record - The transcript of testimony, exhibits, and all papers, and documents filed in the hearing shall constitute the exclusive record for decision.
(k) Initial Order -
An Initial Order shall be issued by the hearing officer in accordance with state law and state rules governing the Department of Human Services Administrative Procedures Division.
(l) Notice of Right to a Petition for Reconsideration and/or Appeal of the Initial Order -
Written notice of the right to petition for reconsideration and/or appeal is to accompany the Initial Order mailed to the parties. A petition for appeal of an Initial Order must be filed with the Commissioner of the Department of Human Services or his/her designated representative within fifteen (15) days after entry of an Initial Order. Also, any party, within fifteen (15) days after entry of an Initial Order, may file a petition for reconsideration with the hearing officer stating the specific grounds upon which relief is requested. If an Initial Order is subject to both a timely petition for reconsideration and appeal, the petition for reconsideration shall be disposed of first; and a new fifteen (15) day period shall start to run upon disposition of the petition for reconsideration.
(m) Final Order -
The Commissioner of the Department of Human Services will review the facts of the case and the Initial Order that has been entered and enter the Final Order in the case.
(n) Notice of Right to a Petition for Reconsideration of a Final Order -
Written notice of the right to petition for reconsideration of the Final Order is to accompany the Final Order to the parties. Any party who feels aggrieved by a Final Order, may within fifteen (15) days following the date of the Order, file a written petition for reconsideration which shall specify in detail the reasons for the request.
(o) Pursuant to T.C.A. ง 71-4-508(a), the Agency shall have sole jurisdiction to provide administrative review or an evidentiary hearing to a licensed manager.

(4) Pursuant to T.C.A. ง 71-4-508(c), the State of Tennessee does not waive its sovereign immunity under the Eleventh Amendment of the U.S. Constitution or the Constitution of the State of Tennessee.

Authority: T.C.A งง 4-5-201 et seq., 4-5-311, 49-11-601 et seq., 71-1-104; 71-1-105(12), 71-4-508(a),(c), and 71-4-604(c); 34 C.F.R. ง 395 et seq. and 34 C.F.R. ง 395, 395.13. Administrative History: Original rule filed August 30, 1978; effective November 29, 1978. Amendment filed June 9, 1981; effective August 18, 1981. Amendment filed May 25, 1983; effective June 24, 1983. Amendment filed December 11, 1986; effective January 25, 1987. (Formerly numbered as 1240-6-10). Amendment filed March 10, 1989; effective April 24, 1989. Amendment filed April 27, 1998; effective August 28, 1998. Repeal and new rule filed April 8, 2005; effective June 22, 2005.

1240-6-11-.03 ARBITRATION

(1) A vending facility manager, after having been provided a full evidentiary hearing by the Agency because of dissatisfaction with some Agency action, may request the convening of an arbitration panel by the U.S. Secretary of Education, because of the decision rendered as a result of such hearing.

(2) A complaint requesting the convening of an arbitration panel must be filed by the manager or his/her representative within a reasonable period of time from the date the manager receives notification of the Final Order rendered in the full evidentiary hearing.

(3) The arbitration proceedings will be conducted pursuant to 34 C.F.R. ง 395.13.

CHAPTER 1240-6-12
COMMITTEE OF BLIND VENDORS

(1) The Committee is a group of licensed managers elected by their peers in different geographic regions of the state to represent the managers' interests in the operation of TBE.

(2) The general purpose of the Committee is to aid and assist the Agency in the appropriate administration of the Randolph-Sheppard program in the state. It is the joint objective of the Committee and the Agency for the Committee to have meaningful participation with the Agency in making major administrative decisions regarding policies, standards, and procedures which affect the overall operation of TBE or which eliminate, modify, or impose additional requirements upon the licensed managers.

(3) Pursuant to the provisions of 34 C.F.R. ง 395.14, the Committee shall function as follows:

(5) The Committee may adopt those methods and procedures which it deems to be appropriate and necessary in addressing these functions, including the appointment of subcommittees as allowed by the Committee's by-laws.

Authority: T.C.A งง 4-5-201 et seq., 49-11-601 et seq., 71-1-104; 71-1-105(12), 71-4-603, and 71-4-604(c); 34 C.F.R. ง 395 et seq. and 34 C.F.R. ง 395.14. Administrative History: Original rule filed August 30, 1978; effective November 29, 1978. Amendment filed May 25, 1983; effective June 24, 1983. Amendment filed December 11, 1986; effective January 25, 1987. (Formerly number 1240-6-11-.02). Repeal and new rule filed April 27, 1998; effective August 28, 1998. Repeal and new rule filed April 8, 2005; effective June 22, 2005.

1240-6-12-.02 AGENCY’S RESPONSIBILITIES TO THE COMMITTEE

(1) The Agency shall prepare written financial reports and file them with the Committee on a quarterly and annual basis, identifying revenues received from all sources, expenses incurred, and changes in fund balances for the set-aside account and for the unassigned accounts for the period or periods covered by the reports.

(2) In order to insure the accuracy of the Ready-for-Employment List and to assist the Committee to fulfill its role of verifying seniority and certifications as part of the promotion process, the Agency shall provide to the Secretary and all other members of the Committee an updated list of all licensed managers with the pertinent information at the regularly scheduled quarterly meetings.

(3) If the Agency is considering a major administrative decision, written notice shall be provided to the Committee of the anticipated change at least twenty-one (21) days prior to participating with the Committee regarding the decision. Conversely, the Agency shall always welcome recommendations from the Committee relative to major administrative changes.

(4) After affording the Committee the time and opportunity for meaningful participation with the Agency, but when complete agreement is not achievable and a decision needs to be made, the Agency has the ultimate responsibility for the administration of the program. The Agency shall make the final determination and notify the Committee of its action in writing. This notification shall clearly state the basis for the decision and indicate the reasons for not adopting the recommendations of the Committee.

Authority: T.C.A งง 4-5-201 et seq., 49-11-601 et seq., 71-1-104; 71-1-105(12), and 71-4-604(c); 34 C.F.R. ง 395 et seq. and 34 C.F.R. ง 395.14. Administrative History: Original rule filed May 25, 1983; effective June 24, 1983. Amendment filed December 11, 1986; effective January 25, 1987. (Formerly number 1240-6-11-.02). Amendment filed March 10, 1989; effective April 24, 1989. Repeal and new rule filed April 27, 1998; effective August 28, 1998. Repeal and new rule filed April 8, 2005; effective June 22, 2005.

1240-6-12-.03 ELECTION OF THE COMMITTEE

(1) The full Committee shall be elected biennially in every odd-numbered year. Nominees for the Committee must be licensed managers who are either permanently or temporarily assigned to a vending facility. Only licensed managers who are permanently or temporarily assigned to a vending facility may vote for the nominees. No other requirement may be imposed upon managers seeking a seat on the Committee nor may any other requirement be imposed upon voters, except that nominees and voters must manage facilities in the same regions from which membership on the Committee is determined to be necessary. The number of Committee members from each region will be a result of a determined jointly by the Agency and Committee. The regions and the number of Committee members from each region will be jointly reviewed by the Agency and Committee once every five years. The configuration of the regions and the membership from each region are subject to revision. Current information regarding regions and Committee representation from each region may be found in the Operations Manual.

(2) The Committee representative(s) in each region shall call a meeting of all managers on or prior to April 15th in each odd-numbered year. The purpose of the meeting is to determine the names of the nominees who will be competing for the available Committee seat(s) in the upcoming election. The number of nominees is limited to twice the number of representative(s) designated for the region. If there are more nominees than allowed for a region, the managers in attendance at the local meeting shall vote to determine which nominees will be submitted to the state office. It is the responsibility of the Committee representative(s) from each region to submit the names of the nominees in writing to the Agency by April 30th so that the election process may be commenced.

(3) After the Agency has received the names of the nominees, the ballots will be prepared for each region and sent only to permanently and temporarily assigned licensed managers in the region. The ballot will identify the region and all the names of the nominees will be listed. Additionally, space will be indicated and allowed for the names of write-in candidates, one for each seat available. The date when the ballots must be postmarked for return mailing shall also be indicated, which is thirty (30) days from the date of the original mailing.

(a) After the Agency has completed the preparation of the ballots, an auditor from the Division of Internal Audit shall review the ballots for each region and witness the process of sealing them in envelopes. The sealed ballot, in an envelope identified only as a “ballot”, and a pre-addressed return envelope addressed to the Division of Internal Audit shall be sent to the managers by registered mail, return receipt requested. The process of depositing the ballots in the mail shall be the responsibility of the assigned auditor. In the event that a manager does not receive a ballot, the Agency will issue another, provided that information validating the non-delivery of the original ballot is received.

(b) After the expiration of thirty-five (35) calendar days from the date of the mailing of the ballots, a date and time will be set with the Division of Internal Audit for the counting of the ballots, so that the election process can be completed by June 20th. All candidates and the members of the Committee will be notified of the date and time, so that they may be present if they so choose. In addition to the personnel from the Division of Internal Audit, there shall be one Agency official available to witness the count.

(c) In the event of a tie vote for one or more seats, a run-off election will be held. New ballots will be prepared for the managers in the particular region. The same process as described in subparagraph (a) above shall be used, except that no write-in candidates shall be permitted. The ballots shall be mailed within five (5) working days from the original date of the counting of the votes. Ten (10) working days shall be allowed for the return of the ballots. After the expiration of fifteen (15) working days from the date of the mailing of these ballots, a date and time will be set with the Division of Internal Audit for the counting of the ballots and notification will be provided as described in subparagraph (b) above so that the run-off election can be completed by July 15th. If the run-off election does not change the result, the full Committee shall select one of the candidates as the winner prior to its July meeting.

(d) After the election is complete and the membership of the new Committee is determined, the official seating of the membership shall occur in the July meeting of the Committee after all business (old and new) has been transacted for the preceding fiscal quarter, and all other matters before the outgoing Committee have been addressed.

(e) An elected member of the Committee automatically vacates the seat if the manager leaves the region to assume the management of a different facility in another region. Additionally, the seat is lost if a manager’s license is terminated or if the Committee determines that the manager is in violation of the by-laws adopted by the Committee. Under any of these circumstances, an election must be held in order to fill the vacancy. Within ten (10) working days of the occurrence which leads to the vacancy, the Committee shall call a meeting of all managers in the region to select nominees to compete for the available seat. Immediately upon receipt of the names of the nominees, which shall be within twenty (20) working days after the vacancy occurs, the Agency shall conduct an election in accordance with the provisions of subparagraph (c) above relating to a run-off election, except that write-in candidates shall be permitted.

Authority: T.C.A. งง 4-5-201 et seq., 71-1-105(12), and 71-4-604(c); 34 C.F.R. ง 395.14. Administrative History: Original rule filed April 8, 2005; effective June 22, 2005.

1240-6-12-.04 COMMITTEE MEETINGS

(1) The Committee shall have four quarterly meetings each year. The meetings are to be held in January, April, July and October. The time and place of these meetings are determined by a majority vote of the Committee. TBE management staff will attend each of these meetings to provide financial information, answer questions, orally submit a report regarding the Agency’s activities during the preceding quarter, and advise the Committee of any future plans.

(2) Pursuant to the provisions of the Committee's by-laws, special call meetings may be held under extraordinary circumstances which require emergency action by the full Committee that cannot be achieved by a telephone conference call.

(3) All members of the Committee will be reimbursed for travel, lodging and meal expenses while on official Committee business in accordance with Tennessee Comprehensive Travel Regulations. Reimbursements will be paid if the appropriate travel claim is submitted within thirty (30) days from the date the expenses were incurred. Expenses for special call meetings cannot be paid unless prior approval is sought and granted for the meeting in question.

Authority: T.C.A. งง 4-5-201 et seq., 71-1-105(12), and 71-4-604(c); 34 C.F.R. ง 395.14. Administrative History: Original rule filed April 8, 2005; effective June 22, 2005.

CHAPTER 1240-6-13
PRIORITY FOR THE ESTABLISHMENT OF VENDING FACILITIES

1240-6-13-.01 Priority for the Establishment of Vending Facilities on Public Properties in Tennessee

1240-6-13-.02 Priority for the Establishment of Vending Facilities on Federal Properties in Tennessee

1240-6-13-.01 PRIORITY FOR THE ESTABLISHMENT OF VENDING FACILITIES ON PUBLIC PROPERTIES IN TENNESSEE

(1) Pursuant to T.C.A. ง 71-4-501 et seq., any properties owned or leased by the State, or properties owned or leased by political subdivisions of the State such as county or municipal governments, must recognize the priority granted to the Agency. The Agency must be permitted to conduct surveys of public properties to determine the feasibility of establishing one or more vending facilities on a particular property. This priority is exclusive and unconditional except for cafeteria service. With respect to cafeteria operations, the Agency must submit a bid to compete to provide the service and will have priority if its bid is within the competitive range when considered with all other bids.

(a) If the results of the survey substantiate that the establishment of a vending facility is feasible, property management shall take all necessary steps to insure that the installation occurs, and that the space and the utilities required are provided (at no cost to the manager) for the operation, except telephone service. The agency shall provide the necessary alterations, plumbing and equipment, merchandise, a licensed manager, and the appropriate supervision of the manager.

(b) In the event that existing buildings are purchased or leased or new buildings are constructed by any of the entities referred to above, written notice shall be given to the Agency in ample time to afford the Agency an opportunity to make plans to provide the service.

(c) All vending facility operations, except those relating to cafeteria service, shall be governed by an agreement between the Agency and property management, known as a permit. The permit, shall include the location, type of facility, space available, all necessary equipment and the operating hours of the facility. For a cafeteria service, a contract between the Agency and property management will be executed which may impose certain requirements upon the manager regarding the operation, including costs for which the manager shall be responsible. In the negotiation process between the Agency and property management regarding either the terms and conditions of an occupancy permit or a contract, The area representative(s) of the Committee shall have an opportunity to participate with the Agency in making final determinations with respect to the terms and conditions of an occupancy permit or contract. The terms and conditions of the permit may be changed after consultation with the manager for purposes of soliciting his/her input. Once the changes have been made, the revised document shall be provided to the manager. The absence of an executed permit does not relieve a manager of his/her responsibilities to otherwise comply with these rules and regulations and/or to provide effective management of the vending facility.

(d) In the event that any dispute between the Agency and property management regarding the granting of the priority, or the establishment or the continued operation of the facility shall be resolved in accordance with T.C.A. ง 71-4- 507.

Authority: T.C.A. งง 4-5-201 et seq., 49-11-601 et seq., 71-1-104, 71-1-105(12), 71-1-501, 71-4-507, 71-4-603, and 71-4-604(c); 34 C.F.R. ง 395 et seq. and 34 C.F.R. ง 395.30. Administrative History: Original rule filed August 30, l978; effective November 29, 1978. Amendment filed May 25, 1983; effective June 24, 1983. Amendment filed December 11, 1986; effective January 25, 1987. (Formerly numbered 1240-6-12-.01). Repeal and new rule filed April 27, 1998; effective August 28, 1998. Repeal and new rule filed April 8, 2005; effective June 22, 2005.

1240-6-13-.02 PRIORITY FOR THE ESTABLISHMENT OF VENDING FACILITIES ON FEDERAL PROPERTIES IN TENNESSEE

(1) Property management of each federal agency must assure that adequate space is available and utilities are provided to accommodate the establishment of one or more vending facilities.

Authority: T.C.A งง 4-5-201 et seq., 49-11-601 et seq., 71-1-104; 71-1-105(12), and 71-4-604(c); 20 U.S.C. ง 107 et seq.; and 34 C.F.R. ง 395 et seq., 34 C.F.R. ง 395.30 and 34 C.F.R. Part 3. Administrative History: Original rule filed August 30, 1978; effective November 29, 1978. Amendment filed May 25, 1983; effective June 24, 1983. Amendment filed December 11, 1986; effective January 25, 1987. (Formerly numbered 1240-6-12-.01). Repeal and new rule filed April 27, 1998; effective August 28, 1998. Repeal and new rule filed April 8, 2005; effective June 22,2005.

1240-6-13-.03 DECISIONS ON OPENING AND CLOSING FACILITIES

(1) The Agency shall make decisions about opening and closing facilities pursuant to policies and procedures developed with the active participation of the Committee and included in the Operations Manual.

(2) Decisions about adding new satellites to existing vending facilities shall be made by the Agency pursuant to policies developed with the active participation of the Committee and included in the Operations Manual.

Authority: T.C.A. งง 4-5-201 et seq., 71-1-105(12), and 71-4-604(c); 34 C.F.R. ง 395.30 and 34 C.F.R. Part 3. Administrative History: Original rule filed April 8, 2005; effective June 22, 2005.

CHAPTER 1240-6-14
VENDING MACHINE INCOME

1240-6-14-.01 VENDING MACHINE INCOME FROM FEDERAL PROPERTY

(1) In the event, the Agency receives income from vending machines on federal property which may or may not be in direct competition with a licensed manager, the Agency will be guided by 34 C.F.R. ง 395.32 in distributing any such funds to a licensed manager. Any funds not distributed to a licensed manager shall be used by the Agency in accordance with 34 C.F.R. ง 395.8 to pay for the managers’ benefits package.

Authority: T.C.A งง 4-5-201 et seq., 49-11-601 et seq., 71-1-104; 71-1-105(12), and 71-4-604(c); 34 C.F.R. ง 395 et seq., and 34 C.F.R. ง 395.8(a) and (b). Administrative History: Original rule filed June 9, 1981; effective August 18, 1981. Amendment filed May 25, 1983; effective June 25, 1983. Amendment filed December 11, 1986; effective January 25, 1987. (Formerly numbered 1240-6-14-.02). Repeal and new rule filed April 27, 1998; effective August 28, 1998. Repeal and new rule filed April 8, 2005; effective June 22, 2005.

1240-6-14-.02 VENDING MACHINE INCOME FROM NON-FEDERAL PROPERTY

(1) Vending machine income derived from vending machines on state or other public properties pursuant to T.C.A. section 71-4-504 shall accrue to the Agency. At the conclusion of each fiscal year, the Agency, with the active participation of the Committee, shall determine the purposes for which the vending machine income may be allocated.

Authority: T.C.A งง 4-5-201 et seq., 49-11-601 et seq., 71-1-104; 71-1-105(12), and 71-4-604(c); 34 C.F.R. ง 395 and 34 C.F.R. ง 395 et seq. Administrative History: Original rule filed June 9, 1981; effective August 18, 1981. Amendment filed May 25, 1983; effective June 25, 1983. Amendment filed December 11, 1986; effective January 25, 1987. (Formerly numbered 1240-6-14-.02). Repeal and new rule filed April 27, 1998; effective August 28, 1998. Repeal and new rule filed April 8, 2005; effective June 22, 2005.

CHAPTER 1240 6 15
AGENCY’S DUTIES AND OBLIGATIONS

1240-6-15-.02 Agency’s Responsibilities to Provide Information and Program Reporting Forms to all Managers

1240-6-15-.01 AGENCY COMPLIANCE WITH LEGAL REQUIREMENTS

(1) The Agency shall administer TBE in strict accordance with 20 U.S.C. ง 107 et seq., T.C.A. ง 71-4-501 et seq., these rules, and the provisions of the Operations Manual.

(2) Any suggested changes proposed by the Agency or the Committee regarding these rules or the provisions of the Operations Manual must be provided to the other at least twenty-one (21) days prior to any negotiating session scheduled for the purpose of considering any revisions.

(3) The Agency shall identify to the Committee the financial needs of TBE at the beginning of each fiscal year, and provide all information necessary in order to allow the Committee to make an informed judgment regarding the use of vending machine income. The Committee shall consider the needs identified by the Agency and make its recommendations to the Agency in sufficient time to be considered in the budgetary process. In reviewing the Committee's recommendations, the Agency shall assure that a minimum of fifty percent (50%) of the total vending machine income received pursuant to T.C.A. section 71-4-504 shall be allocated for the health insurance and/or retirement program.

Authority: T.C.A งง 4-5-201 et seq., 71-1-105(12), 71-4-503, 71-4-504, 71-4-508, and 71-4-604; 34 C.F.R. ง 395. 34. Administrative History: Original rule filed April 8, 2005; effective June 22, 2005.

1240-6-15-.02 AGENCY’S RESPONSIBILITIES TO PROVIDE INFORMATION AND PROGRAM REPORTING FORMS TO ALL MANAGERS

(1) The Agency shall provide to each licensed manager a copy of these rules and regulations and a copy of the Operations Manual. These shall be provided in an accessible format if requested by the manager.

(2) The Agency must provide any information regarding the operation of TBE requested by any manager if the disclosure of such information does not violate professional ethics or infringe upon the right to confidentiality of any staff member or any other manager.

(4) The Agency must provide to all managers the reporting forms necessary to comply with TBE rules, policies and procedures. No changes or additions to reporting forms may be adopted by the Agency without first submitting recommendations to and seeking the approval of the Committee.

Authority: T.C.A งง 4-5-201 et seq., 71-1-105(12), 71-4-503, 71-4-508, and 71-4-604; 34 C.F.R. ง 395. Administrative History: Original rule filed April 8, 2005; effective June 22, 2005.

HEALTH INSURANCE AND RETIREMENT PROGRAM

1240-6-16-.01 HEALTH INSURANCE ELIGIBILITY

(1) Pursuant to a majority vote of all licensed managers, vending machine income received by the Agency which is not payable to licensed managers as provided in 34 C.F.R. ง 395.8 and which is sufficient in amount shall be used in accordance with 34 C.F.R. ง 395.9 to provide health insurance coverage to all licensed, permanently assigned vending facility managers and eligible dependents. Managers who are not permanently assigned and who have established transfer or demotion eligibility shall continue to receive the health insurance benefits so long as there is an accrual of seniority in accordance with chapter 1240-6-5-.06(3). Licensed managers who are temporarily assigned shall not receive such coverage. Pursuant to budgetary decisions made by the Agency and Committee, managers may be required to pay a portion of their health insurance premiums.

Authority: T.C.A. งง 4-5-201 et seq., 71-1-105(12), 71-4-503, 71-4-509, and 71-4-604; 34 C.F.R. ง 395. Administrative History: Original rule filed April 8, 2005; effective June 22, 2005.

1240-6-16-.02 RETIREMENT BENEFITS ELIGIBILITY

(1) Pursuant to a majority vote of all licensed managers, vending machine income received by the Agency which is not payable to licensed managers as provided in 34 C.F.R. ง 395.8 shall be used in accordance with 34 C.F.R. ง 395.9 to provide a retirement plan for all licensed, permanently assigned vending facility managers. Managers who are not permanently assigned and who have established transfer or demotion eligibility shall continue to receive the retirement benefits if there is an accrual of seniority in accordance with chapter 1240-6-5-.06(3). Licensed managers who are temporarily assigned shall not receive such benefits.

Authority: T.C.A. งง4-5-201 et seq., 71-1-105(12), 71-1-503, 71-4-509, and 71-4-604; 34 C.F.R. ง 395. Administrative History: Original rule filed April 8, 2005; effective June 22, 2005.

1240-6-16-.03 CONTRIBUTIONS TO THE RETIREMENT PLAN

(1) The Agency shall, if the monies are available after contributing funding to the health insurance program, make contributions to a retirement plan on an annual basis, if possible. Such contributions may be made directly to the manager or to an established retirement account depending upon the vote of the Committee.

Authority: T.C.A. งง4-5-201 et seq., 71-1-105(12), 71-1-503, 71-4-509, and 71-4-604; 34 C.F.R. ง 395. Administrative History: Original rule filed April 8, 2005; effective June 22, 2005.

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Tennessee Little Randolph-Shepherd Act

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