Part 4.
TEXAS COMMISSION FOR THE BLIND
Chapter 159.
ADMINISTRATIVE RULES AND PROCEDURES
Subchapter E. PURCHASE OF GOODS AND SERVICES BY THE COMMISSION
40 TAC §159.107
The Texas Commission for the Blind adopts amended §159.107,
concerning best value factors in the purchase of goods and services. The rule
is adopted without changes to the proposed text as published in the November
22, 2002, issue of the
Texas Register
(27
TexReg 10909) and will not be republished.
The amended rule will serve as the Commission's rule on applying best value
factors services if a proposed purchase is to be awarded on the basis of consideration
of factors other than price and meeting specifications. The rule also clarifies
that the Commission will comply with requirements in Government Code, §2155.144(e),
which requires health and human services agencies to notify the state auditor
and consult with and receive approval from the Health and Human Services Commission
before considering factors other than price and meeting specifications when
it acquires goods or services with a value that exceeds $100,000. The amended
rule is consistent with rules adopted by the Health and Human Services Commission
in 1 TAC, Part 15, Chapter 391.
No comments were received in response to the notice of the proposed amendment
as published in the above-referenced issue of the Texas Register .
The rule as amended is adopted under Human Resources Code §91.011,
which authorizes the Commission to adopt rules prescribing the policies and
procedures followed by the Commission in the administration of its programs,
and Government Code, §2155.144(g), which requires health and human service
agencies to adopt rules and procedures for the acquisition of goods and services
that are consistent with the rules of the Health and Human Services Commission.
The following statute is also affected by the rule: Government Code, Title
10, §2155.144.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on February 11, 2003.
TRD-200300997
Terrell I. Murphy
Executive Director
Texas Commission for the Blind
Effective date: March 3, 2003
Proposal publication date: November 22, 2002
For further information, please call: (512) 377-0611
Subchapter A. GENERAL RULES
40 TAC §162.2
The Texas Commission for the Blind adopts §162.2, concerning
referrals to Criss Cole Rehabilitation Center. The rule is adopted without
changes to the proposed text as published in the November 22, 2002, issue
of the
Texas Register
(27 TexReg 10910) and
will not be republished.
The amended rule will serve as the Commission's rule on accepting referrals
from other state rehabilitation agencies into the training programs at Criss
Cole Rehabilitation Center when space is available.
No comments were received in response to the notice of the proposed amendment
as published in the above-referenced issue of the
Texas Register
.
The rule as amended is adopted under Human Resources Code §91.011,
which authorizes the Commission to adopt rules prescribing the policies and
procedures followed by the Commission in the administration of its programs.
The amendment also affects §91.052, which authorizes the Commission
to enter reciprocal agreements with other states to provide vocational rehabilitation
for the residents of the states concerned.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on February 11, 2003.
TRD-200300998
Terrell I. Murphy
Executive Director
Texas Commission for the Blind
Effective date: March 3, 2003
Proposal publication date: November 22, 2002
For further information, please call: (512) 377-0611
40 TAC §167.9
The Texas Commission for the Blind adopts the amendment of §167.9
pertaining to set-aside fees in the operation of Business Enterprises of Texas.
The amendment is adopted with changes to the proposed text published in the
November 22, 2002, issue of the
Texas Register
(27
TexReg 10910). One technical change has been made to subsection (b)(5), to
ensure that the language conforms to federal regulations. Federal regulations
assign voting rights on the establishment and maintenance of retirement or
pension funds, health insurance contributions, and provision for paid sick
leave and vacation time to those BET managers assigned to and operating a
facility. By definition (34CFR395, §395.1(b) and (aa)), the regulations
exclude from voting those individuals licensed by BET but not operating a
facility. Because the Commission uses the term "manager" instead of "vendor"
in its program, this clarification is needed. The agency intends to propose
additional changes to this chapter in the near future and will be revising
its definitions and rules accordingly at that time to clearly differentiate
between licensees and managers.
The rule as adopted establishes the Commission's system for reviewing the
fiscal resources of the program. This will ensure that the collection of set-aside
fees does not exceed amounts necessary to fund aspects of the program allowed
by the Randolph-Sheppard Act. The amended rule also creates a system for involving
the Elected Committee of Managers in potential annual changes.
No comments were received in response to the notice of the proposed amendment
as published in the above-referenced issue of the
Texas Register
.
The amendment is adopted under Human Resources Code §94.012,
which authorizes the Commission to promulgate rules for the administration
of the program and §94.016, which authorizes the commission to administer
the program in accordance with the provisions of the Randolph-Sheppard Act
(20 U.S.C. Section 107 et seq.).
§167.9.Set-Aside Fees.
(a)
Purpose. It is the policy of the Texas Commission for the
Blind to require from managers the payment of a set-aside fee based on the
monthly net proceeds of their BET facilities. The purpose of requiring such
payment is:
(1)
to promote to the greatest possible extent the concept
of a manager being an independent business person;
(2)
to cause BET to be to the greatest extent possible, with
due regard to other considerations, self-supporting;
(3)
to encourage and stimulate growth in BET; and
(4)
to provide incentives for the increased employment opportunities
for blind Texans.
(b)
Use of funds. To the extent permitted or required by applicable
laws, rules, and regulations, the funds collected as set-aside fees shall
be used by the Commission for the following purposes:
(1)
maintenance and replacement of equipment for use in BET;
(2)
purchase of new equipment for use in BET;
(3)
management services;
(4)
assuring a fair minimum return to managers; and
(5)
the establishment and maintenance of retirement or pension
funds, health insurance contributions, and provision for paid sick leave and
vacation time if it is so determined by a majority vote of managers assigned
to a facility, after the Commission provides to each such manager information
on all matters relevant to such proposed purposes.
(c)
Method of computing net proceeds.
(1)
Net proceeds is the amount remaining from the sale of merchandise
of a BET facility, all vending machine income, and other income accruing to
the manager from the facility after deducting the reasonable and necessary
cost of such sale, but excluding set-aside charges required to be paid by
the manager. Net sales are all sales, excluding sales tax.
(2)
Costs of sales that may be deducted from net sales to calculate
net proceeds in a reporting period shall be limited to:
(A)
cost of merchandise sold;
(B)
wages paid to employees;
(C)
payroll taxes; and
(D)
the following reasonable miscellaneous operating expenses
that are directly related to the operation of the BET facility:
(i)
discretionary expenses, not to exceed 1.5% of the monthly
net sales, or $150, whichever is greater;
(ii)
rent and utilities authorized in the permit or contract;
(iii)
business taxes, licenses, and permits;
(iv)
telecommunication services;
(v)
liability, property damage, and fire insurance;
(vi)
Worker's Compensation insurance;
(vii)
employee group hospitalization/health insurance;
(viii)
employee retirement contributions (the plans must be
IRS-approved and not for the manager);
(ix)
janitorial services, supplies, and equipment;
(x)
bookkeeping and accounting services;
(xi)
trash removal and disposal services;
(xii)
service contracts on file with the Commission;
(xiii)
legal fees directly related to the operation of the
facility (legal fees directly or indirectly related to actions against governmental
entities are not deductible);
(xiv)
medical expenses directly related to accidents that occur
to employees at the facility, not to exceed $500;
(xv)
purchase of personally owned or leased equipment that
has been approved by the Commission for placement in the facility;
(xvi)
repairs and maintenance to personally owned or leased
equipment that has been approved by the Commission to be placed within the
facility;
(xvii)
consumable office supplies; and
(xviii)
exterminator/pest control services.
(3)
All reports by managers shall be accompanied by such supporting
documents as may be required by the Commission.
(d)
Method of computing monthly set-aside fee. The monthly
set-aside fee of each manager shall be a percentage of the amount that results
from applying the schedule in paragraphs (1)-(5) of this subsection. The provisions
relative to the percentage required to be paid as set-aside fees shall be
reviewed by the Commission with the active participation of the ECM at least
annually during the regular meeting of the governing board next following
the end of the State of Texas fiscal year. The review shall be for the purpose
of determining whether the percentage needs to be adjusted in order to meet
the needs of the program. The governing board of the Commission and the ECM
shall be provided with all relevant financial and other information concerning
the financial requirements of the program no fewer than 60 days prior to any
meeting of the Commission's governing board in which a change in the percentage
is to be considered. For the period from the effective date of this amended
rule until the Commission undertakes its first annual review of the set-aside
fee, the percentage shall be 25 percent.
(1)
On net proceeds of $1 to $999.99, the amount shall be 2%
of the manager's net proceeds.
(2)
On net proceeds of $1,000 to $1,499.99, the amount shall
be 3% of the manager's net proceeds.
(3)
On net proceeds of $1,500 to $1,999.99, the amount shall
be 4% of the manager's net proceeds.
(4)
On net proceeds of $2,000 to $5,999.99, the amount shall
be $80 plus 18% of the manager's net proceeds over $2,000.
(5)
On net proceeds of $6,000 or more, the amount shall be
$800 plus 24% of the manager's net proceeds over $6,000.
(e)
Payment of set-aside fee. The set-aside fee shall be submitted
with the manager's monthly statement of facility operations. The BET director
shall develop and implement procedures for the preparation and submittal of
monthly statements.
(f)
Adjustments to monthly set-aside fee.
(1)
When a "single point of contact" is required under the
provisions of §167.16 of this title, pertaining to establishing and closing
facilities, the monthly set-aside payment for the contact manager shall be
reduced by 3% for each manager represented.
(2)
To encourage managers to hire individuals with significant
disabilities, managers shall deduct from their set-aside payment up to 50%
of the wages or salary paid to a blind or otherwise significantly disabled
employee during any month up to an amount not to exceed 5% of the set-aside
payment amount for that month. A manager may make this deduction for any number
of employees who are individuals who are blind or otherwise significantly
disabled so long as that deduction from the set-aside payment amount does
not exceed 25% of the total set-aside payment due, or $1,250.00, whichever
is less. The manager shall provide such documentation to the Commission as
required by the Commission to verify such employment and the right to the
reduction in set-aside fees. For the purposes of this paragraph, the term
"blind or otherwise significantly disabled employee" does not include:
(A)
the manager,
(B)
a blind or otherwise significantly disabled person within
the first degree of consanguinity or affinity to the manager, or
(C)
a blind or otherwise significantly disabled person claimed
as a dependent, either in whole or in part, on the manager's United States
income tax return.
(3)
Any adjustments provided for in paragraphs (1) and (2)
of this subsection shall not apply for any month in which the set-aside fee
is not paid in a timely manner.
(4)
To encourage managers to promptly file their monthly statement
of facility operations and pay their monthly set-aside fee, managers shall
have their monthly set-aside fee increased by 5% if either their monthly statement
or the monthly set-aside fee is not timely received by the Commission in accordance
with BET procedures for their preparation and submittal. None of the terms
of this rule shall ever be construed to create a contract to pay, as consideration
for the use, forbearance, or detention of money, interest at a rate in excess
of the maximum rate permitted by applicable laws. This adjustment to the set-aside
fee is not imposed as interest, but if for any reason whatever this adjustment
is considered to be interest, the Commission shall refund to the manager any
and all amounts as shall be necessary to cause the "interest" paid to produce
a rate equal to the maximum rate permitted by applicable laws.
This agency hereby certifies that the adoption has been
reviewed by legal counsel and found to be a valid exercise of the agency's
legal authority.
Filed with the Office of
the Secretary of State on February 11, 2003.
TRD-200300993
Terrell I. Murphy
Executive Director
Texas Commission for the Blind
Effective date: March 3, 2003
Proposal publication date: November 22, 2002
For further information, please call: (512) 377-0611
The Texas Commission for the Blind (TCB) adopts the repeal of §171.2,
pertaining to Coordinated Services for Children and Youths, and the amendment
of §171.3, pertaining to Transition Planning for Students Receiving Special
Education. The repeal of §171.2 is adopted without changes to the proposed
repeal as published in the November 22, 2002, issue of the
Texas Register
(27 TexReg 10911) and will not be republished. The amendment
of §171.3 is also adopted without changes to the proposed amendment as
published in the November 22, 2002, issue of the
Texas Register
(27 TexReg 10911) and will not be republished.
The repeal of §171.2 is adopted because the reason for its adoption
no longer exists. The lead agency in the memorandum of understanding (MOU)
changed in the last legislative session and the revised statutory language
no longer requires the MOU to be adopted by rule. A new MOU has been signed
by applicable agencies and is now posted on the Health and Human Services
Commission's public website.
The proposed amendment to §171.3 pertaining to Transition Planning
for Students Receiving Special Education is adopted to correct the cross-reference
to the Texas Education Agency's rules, which contains the text of a new MOU
between signatory agencies. The new MOU addresses the respective roles and
responsibilities of participating agencies in the sharing of information about,
and coordination of services to, eligible students with disabilities receiving
transition services. The new MOU more clearly establishes the respective responsibilities
of each agency for the provision of services necessary to prepare students
enrolled in special education programs for a successful transition to life
outside of the public school system.
No comments were received in response to the notice of the proposed repeal
and amendment as published in the above-referenced issue of the
Texas Register
.
Chapter 162.
CRISS COLE REHABILITATION CENTER
Chapter 167.
BUSINESS ENTERPRISES OF TEXAS
Chapter 171.
MEMORANDA OF UNDERSTANDING