40 TAC §189.6
The Texas Council on Purchasing from People with Disabilities
(the Council) proposes to amend Texas Administrative Code, Title 40, Part
7, Chapter 189, §189.6, concerning Criteria for Recognition and Approval
of Community Rehabilitation Programs (CRP). These amendments set forth the
requirements and procedure for the certification of CRPs and establish the
requirement for periodic recertification. The amendments include the deletion
of subsections (f) - (j) since that language has been relocated in new §189.13
in Chapter 189, concerning Recognition and Approval of Community Rehabilitation
Programs Products and Services, for administrative convenience and clarification.
These amendments are required to fulfill the mandates of Senate Bill 261 passed
by the 78th Legislature. Senate Bill 261, which became effective September
1, 2003, amended §122.003 of the Human Resources Code to require the
Council to adopt rules establishing a formal certification process for CRPs.
Section 122.003 also requires that the Council establish a three person certification
subcommittee.
Margaret Pfluger, Chairperson of the Texas Council on Purchasing from People
with Disabilities, has determined for the first five-year period the amendments
are in effect, there will be no fiscal implication for the state or local
governments as a result of enforcing or administering the amended section.
Ms. Pfluger has also determined that there will be no additional costs
to the state or local governments as a result of enforcing and administering
the amended section.
Ms. Pfluger has also determined that there is no anticipated increase or
loss of revenue to the state or local government as a result of enforcing
and administering the amended section.
Ms. Pfluger has further determined that for each year of the first five-year
period the amendments are in effect, the public benefit anticipated as a result
of enforcing the amended section will be the consistent compliance with statutory
mandates to certify Community Rehabilitation Programs (CRPs) and the assurance
that all CRPs participating in the state use program meet certain minimum
standards and are periodically reviewed to assure continued compliance with
those standards. There will be minimal effect on large, small or micro-businesses.
There will be minimal anticipated economic costs to persons who are required
to comply with the amendments and there is no impact on local employment.
Comments on the proposal may be submitted to Kelvin Moore, Program Administrator,
Texas Council on Purchasing from People with Disabilities, P.O. Box 13047,
Austin, Texas 78711-3047. Comments may also be submitted electronically to
kelvin.moore@tbpc.state.tx.us or faxed to (512) 475-0403. Comments must be
received no later than 30 days from the date of publication of the proposal
in the
Texas Register
.
The amendments are proposed under the authority of the Texas
Human Resource Code, Title 8, Chapter 122, §122.003 and §122.013.
The following code is affected by these amendments: §122.019 and §122.0215.
§189.6.Criteria for Recognition and Approval of Community Rehabilitation Programs.
[(a)
The council shall establish and follow
a documented process for the certification of community rehabilitation programs.]
[(b)
Any CRP currently participating in the
state use program on the date these rules are adopted will be allowed to continue
so long as they comply with the criteria given in this chapter.]
(a)
[
(c)
] A CRP must be a government
entity
or
, private nonprofit unincorporated entity which has its
own nonprofit status and federal tax identification number and has
among
its purposes
[
as its primary purpose
] the employment of persons
with disabilities to produce products or perform services for compensation,
or a private nonprofit incorporated entity with its own federal tax identification
number, articles of incorporation and bylaws that establish its existence
for the [
primary
] purpose of employing persons with disabilities
to produce products or perform services for compensation.
(b)
[
(d)
] A CRP must maintain payroll,
human resource functions, accounting and documentation of disability for people
employed to produce goods or services under the state use program.
(c)
[
(e)
] A CRP must maintain contracts
and billing and payment records if it contracts with outside entities for
services of any kind.
(d)
Procedures for Certification
(1)
To qualify for participation in the State Use Program under
Human Resource Code Chapter 122, an applicant must submit a completed required
application and the following documents to the Certification Subcommittee,
through the State Use Program's CNA, transmitted by a letter signed by an
officer of the corporation, and/or chief administrator for the corporation.
Upon receipt, the CNA will verify the completeness and accuracy of each application.
(A)
A legible copy of the IRS non-profit determination 501(c)(3)
when required by law.
(B)
A legible copy of the Certification of Incorporation granted
by the Secretary of State when required by law.
(C)
A list of each service or product you propose to offer,
and the location(s) where it will be produced.
(D)
A roster of your board of directors, including names and
addresses.
(E)
A legible copy of your organizational chart with job title
(F)
A legible copy of your current liability insurance for
each location where clients will be served.
(G)
Current fire inspection certificate awarded by the city,
county, or state fire marshal for each location where clients will be served.
(H)
A legible copy of the building inspection certificate or
occupancy certificate, if required by city regulation, for each location where
clients will be served.
(I)
Wage exemption certificate (WH-228), if you will be paying
sub-minimum wages to clients.
(J)
A CRP must provide a notarized statement that at least
seventy-five percent (75%) of the hours of direct labor necessary to perform
services or reform raw materials, assemble components, manufacture, prepare,
process and/package products will be performed by persons with disabilities.
(2)
The CNA will submit all new CRP's completed application
and necessary documents to the Certification Subcommittee of the Texas Council
on Purchasing from People with Disabilities. The CNA will deliver a copy of
the application to the Certification Subcommittee not less than fifteen days
prior to the regular scheduled Certification Subcommittee meeting.
(A)
The Certification Subcommittee is composed of three Council
members appointed by the presiding officer to review applications of the Community
Rehabilitation Programs.
(B)
The Certification Subcommittee shall review each application
and documentation and, if acceptable, forward the recommendations to the Council
for approval. Once approved the full Council will notify the CRP in writing
of their approved designation and present each with a certification number.
Only the Council can approve eligibility. The CRP must be certified by the
Council before its products or services can be reviewed by the Pricing Subcommittee
of the Council on Purchasing from People with Disabilities. A CRP shall not
participate in the State Use Program prior to the Council's certification.
(C)
A CRP may protest a non-approval recommendation at the
next scheduled Certification Subcommittee meeting.
(D)
To maintain its certification, each CRP must meet the requirements
as set forth in this chapter and Chapter 122 of the Human Resources Code.
Each CRP must be recertified every three (3) years by the Council. The staff
of the Council shall establish a schedule for the recertification process
for all CRPs. The CNA shall assist each CRP as necessary to facilitate the
recertification of the CRPs.
[(f)
A CRP desiring to provide services under
the state use program must comply with the following requirements to obtain
approval from the council:]
[(1)
A minimum of thirty-five percent (35%) of the contract
price of the service must be paid to persons with disabilities who perform
the service in the form of wages and benefits; however, the council may accept
a lower percentage when it is satisfied that this percentage is not feasible
for a particular service.]
[(2)
Supply costs for the service must not exceed twenty percent
(20%) of the contract price of the service; however, the council may accept
a larger percentage when it is satisfied that this percentage is not feasible
for a particular service.]
[(3)
Administrative costs allocated to the service must not
exceed ten percent (10%) of the contract price for the service. At least seventy-five
percent (75%) of the hours of direct labor necessary to perform a service
must be done by persons with disabilities; however, the council may accept
a lower percentage when it is satisfied that this percentage is not feasible
for a particular service.]
[(g)
A CRP must comply with the following
requirements to obtain approval from the council for state use products:]
[(1)
At least seventy-five percent (75%) of the hours of direct
labor necessary to reform raw materials, assemble components, manufacture,
prepare, process and/or package a product must be done by persons with disabilities;
however, the council may accept a lower percentage when it is satisfied that
this percentage is not feasible for a particular product.]
[(2)
Appreciable contribution to the product by persons with
disabilities must be determined on a product-by-product basis to be substantial
based on acceptable documentation provided to the council upon application
for a product to be approved for the state use program.]
[(h)
The rules governing the approval of products
to be offered by community rehabilitation programs apply to all items that
a community rehabilitation program proposes to offer to state agencies or
political subdivisions, regardless of the method of acquisition by the agency,
whether by sale or lease. A community rehabilitation program must in fact
own any product or products it leases. A proposal by a community rehabilitation
program to rent or lease a product to a state agency is a proposal to offer
a product, not a service, and the item offered must meet the requirements
of these rules governing products. If the product is offered for lease by
the community rehabilitation program, the unit cost of the product, for purposes
of applying the standards set forth in these rules, is the total cost to the
state agency of leasing the product over its expected useful life.]
[(i)
Any necessary subcontracted services
shall be performed to the maximum extent possible by other community rehabilitation
programs and in a manner that maximizes the employment of persons with disabilities.]
[(j)
Raw materials or components may be obtained
from companies operated for profit, but a community rehabilitation program
must own any product that it offers for sale to state agencies or political
subdivisions through the state use program and make an appreciable contribution
to the product which accounts for a substantial amount of the value added
to the product.]
(e)
[
(k)
] The organization must not serve,
in whole or in part, as an outlet or front for any entity whose primary purpose
is not the employment of people with disabilities.
(f)
[
(l)
] The council may:
(1)
recognize a CRP that maintains accreditation by a nationally
accepted vocational rehabilitation accrediting organization, and
(2)
approve CRP services that have been approved for a purchase
by a state habilitation or rehabilitation agency.
(g)
[
(m)
] The council, at its sole discretion,
may review, or have reviewed, any CRP approved to participate in this program
to verify that the CRP meets the applicable qualifications contained in this
chapter.
(h)
[
(n)
] Violation of any of the
requirements of
[
criteria given in
] this chapter, or verified
instances of conflict of interest
by
[
for
] a CRP may
result in suspension of approval or in disapproval of a CRP's eligibility
to participate in this program, and/or may result in suspension or disqualification
of any product or service.
(i)
[
(o)
] Neither the council, nor any
individual member, the State of Texas, nor any other Texas state agency will
be responsible for any loss or losses, financial or otherwise, incurred by
any CRP should its product not be approved for the state use program as provided
by law.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State on February 28, 2005.
TRD-200500889
Margaret Pfluger
Chairman
Texas Council on Purchasing from People with Disabilities
Earliest possible date of adoption: April 17, 2005
For further information, please call: (512) 463-3244