Texas Register
(30 TexReg 3881), the Texas Council
on Purchasing from People with Disabilities has reviewed and considered Texas
Administrative Code, Title 40, §189.6 for readoption, revision, or repeal,
in accordance with the Texas Government Code §2001.039 (Vernon 2000).
The Council determined that 40 Texas Administrative Code §189.6, which
governs certification and re-certification of community rehabilitation programs
(CRPs), is also still necessary, but requires further substantive revision.
In a concurrent miscellaneous notice, the Council announces its intent to
readopt 40 Texas Administrative Code §189.6 with amendment. The amendment
is proposed pursuant to the rulemaking authority granted to the Council in
Texas Human Resources Code, §122.003(j) and §122.013(c)(2) (Vernon
Supp. 2005).
The proposed amendment clarifies the statutory requirements and the Council's
requirements related to eligibility to participate as a CRP in the State Use
Program and applications for CRP certification and recertification. The proposed
amendment permits the Council to delegate, to a central nonprofit agency,
administrative duties related to the certification and recertification process;
however the Council retains sole authority to vote on CRP applications or
to take action regarding a CRP's continued participation in the State Use
Program. The proposed amendment also explain in more detail required CRP recordkeeping.
The proposed amendment further addresses the approval process of applications
for CRP certification and recertification and retains the right to protest
a recommendation of non-approval by the Council's Certification Subcommittee.
The proposed amendment delineates required CRP reporting to a central nonprofit
agency and to the Council. The proposed amendment discusses the Council's
right to review a CRP's performance and compliance with the laws governing
the State Use Program and the Council's right to suspend or revoke a CRP's
certification. Finally, the proposed amendment emphasizes existing standards
of conduct for CRPs during the application process and while certified to
participate in the State Use Program.
Mr. John W. Luna, Chairman of the Council, has determined that for each
year of the first five-year period the proposed rule is in effect there will
be no fiscal implications for state or local government as a result of enforcing
or administering the proposed rule.
Mr. Luna has also determined that for each year of the first five-year
period the proposed rule is in effect the public will benefit from the clarification
of eligibility and application requirements for CRPs.
Mr. Luna has also determined that there will be no effect on individuals
or large, small, and micro-businesses as a result of the adoption of the proposed
rule.
Mr. Luna has also determined that for each year of the first five-year
period the proposed rule is in effect there should be no effect on a local
economy; therefore, no local employment impact statement is required under
Administrative Procedure Act, Texas Government Code, §2001.022 (Vernon
Supp. 2005).
Interested persons may submit written comments on the proposal may be submitted
to Rules Coordinator, Legal Services Division, Texas Building and Procurement
Commission, P.O. Box 13047, Austin, TX 78711-3047. Comments may also be sent
via email to: rulescomments@tbpc.state.tx.us. For comments submitted electronically,
please include "Proposed Certification and Re-Certification of CRPs" in the
subject line. Comments must be received no later than thirty days from the
date of publication of the proposal to the
Texas
Register
. Comments should be organized in a manner consistent with
the organization of the proposed rule. Questions concerning this proposed
amendment may be directed to Ms. Susan Maldonado at (512) 463-3960.
The amendment is proposed under Texas Human Resources Code, §122.003(j)
and §122.013(c)(2), which require the Council to adopt rules to establish
a process for the certification of CRPs.
The statutory provisions affected by the proposed rule are those set forth
in Chapter 122 of the Texas Human Resources Code.
§189.6. Certification and Re-Certification [ Criteria for Recognition and Approval ] of Community Rehabilitation Programs.
(a)
No applicant for certification
may participate in the State Use Program prior to the Council's approval of
certification.
(b)
The Council may recognize programs
that are accredited by national accepted vocational rehabilitation accrediting
organizations and approve CRPs that have been approved by a state's habilitation
or rehabilitation agency.
(c)
The Council may delegate the
administration of the certification process for CRPs to a CNA.
(d)
[
(a)
]
An applicant for
[
A
] CRP
certification
must be a governmental entity
; a public
or private nonprofit unincorporated entity
,
which
has its own nonprofit status and federal tax identification number and has
among its purposes the employment of persons with disabilities to produce
products or perform services for compensation
;
[
,
]or
a
public or
private nonprofit incorporated entity with its own
federal tax identification number, articles of incorporation and bylaws that
state among its purposes the employment of
[
establish its existence
for the primary purpose of employing
] persons with disabilities to produce
products or perform services for compensation.
(e)
[
(b)
] A
certified
CRP
must
:
(1)
maintain payroll, human resource functions,
accounting
,
and
all relevant
documentation
showing
that the employees who produce products or perform services
[
of
disability for people employed to produce goods or services
] under the
State Use Program are persons with disabilities;
[
state use program
.]
(2)
maintain records, including
contracts with other entities, in accordance with generally accepted accounting
principles, and all laws relevant to the records; and
(3)
maintain any other records
or documents required by the Council.
[
(c)
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]
(f)
An
applicant
for certification
must submit a completed [
required
] application and the
required
[
following
] documents to the Certification Subcommittee,
through the
CNA for the State Use Program
[
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
the
[
each
] application.
No application will be considered without the following documents:
(1)
[
(A)
] [
A legible
] copy
of the IRS non-profit determination under Section 501(c)[
(3)
]
,
when required by law
;
[
.
]
(2)
[
(B)
] [
A legible
] copy
of the
Articles
[
Certification
] of Incorporation
issued
[
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.]
(3)
[
(D)
]
list of the
[
A roster of your
] board of directors
and officers with
[
, including
] names
,
[
and
] addresses
, and
telephone numbers;
[
.
]
(4)
[
(E)
] [
A legible
] copy
of
the
[
your
] organizational chart with job
titles
and names;
[
title.
]
(5)
[
(F)
] [
A legible
] copy
of
the
[
your
] current liability insurance for
the CRP;
[
each location where clients will be served.
]
(6)
[
(G)
]
current
[
Current
] fire inspection certificate
, if required
[
awarded
] by [
the
] city, county, or state
regulations,
[
fire marshal
] for each location where clients will be served
or
where persons with disabilities will be employed, or a statement of unavailability
from the appropriate city, county, or state entity;
[
.
]
(7)
[
(H)
] [
A legible
] copy
of the building inspection certificate or
certificate of
occupancy
[
certificate
], if required by city
, county, or state regulations
[
regulation
], for each location where clients will be served
or where persons with disabilities will be employed, or a statement of unavailability
from the appropriate city, county, or state entity;
[
.
]
(8)
[
(I)
]
copy of the wage
[
Wage
] exemption certificate (WH-228)[
,
] if
below minimum
wages will be paid
[
you will be paying sub-minimum wages
]
to clients
or to persons with disabilities who will be employed and a
statement of explanation of circumstances requiring sub-minimum wages; and
[
.
]
(9)
[
(J)
] [
A CRP must provide
a
] notarized statement that
the CRP agrees to maintain compliance
with the requirement that
at least seventy-five percent (75%) of the
CRP's total
hours of direct labor necessary to perform services or reform
raw materials, assemble components, manufacture, prepare, process and/
or
package products will be performed by persons with
documented
disabilities
consistent with the following definition set forth
in this Chapter: Disability--a mental or physical impairment, including blindness,
that impedes a person who is seeking, entering, or maintaining gainful employment.
A waiver may be granted only with Council approval
.
(g)
[
(2)
] The CNA will submit
the
[
all new CRP's
] completed application and
required
[
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
(15)
days prior to the regularly
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.]
(h)
[
(B)
] The Certification Subcommittee
shall review each application and documentation and, if acceptable, forward
its
[
the
] recommendations to the Council for approval. Once
approved, the Council will notify the CRP in writing [
of their approved
designation
] and
assign the CRP
[
present each with
]
a certification number. [
Only the Council can approve eligibility. A
CRP shall not participate in the State Use Program prior to the Council's
certification.
]
(i)
[
(C)
] A CRP may protest a
recommendation
of non-approval
[
non-approval recommendation
] at the next
scheduled Certification Subcommittee meeting
in accordance with the provisions
of this Chapter
.
(j)
[
(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 re-certified every
three (3) years by the Council.
The re-certification procedure will require
submission of all previously requested documentation, a review of submitted
reports to the CNA, and a determination that the CRP has maintained compliance
with the stated requirements of the State Use Program and the rules as stated
in the Texas Administrative Code, Title 40, Chapter 189.
The [
staff of the
] Council shall establish a schedule for the
re-certification
[
recertification
] process
and the
[
for all
CRPs. The
] CNA shall assist each CRP as necessary to
attain re-certification.
It is imperative that the CRP, after notification, submit within thirty (30)
days the application for re-certification and required documents to the CNA.
If the CRP fails to do so, the Council may request a written explanation and/or
the appearance of a representative of the CRP before the Council. If the CRP
fails to respond in a timely manner, the Council may consider the suspension
of all State Use Program contracts until the re-certification process has
been completed and approval has been attained
[
facilitate the recertification
of the CRPs
].
(k)
The CRP will submit quarterly
wage and hour reports to the CNA. These reports are due no later than the
last day of the month following the end of the quarter. If the CRP fails to
submit reports on time, the Council will send a warning letter and a representative
of the CRP may be requested to appear before the Council. If compliance is
not achieved in a consistent and timely manner, the Council, at its discretion,
may consider the suspension of the CRP's State Use Program contracts.
(l)
It is imperative that CRPs
maintain compliance with the State Use Program in regard to percentage requirements
related to administrative costs, supplies cost, wages, and hours of direct
labor necessary to perform services and/or produce products. Compliance will
be monitored by the CNA and violations will be reported promptly to the Council.
A violation will result in a warning letter from the Council and the CNA will
offer assistance as needed to achieve compliance. A CRP that fails to meet
compliance requirements, without a waiver from the Council, for two quarters
in any four quarter period must submit a written explanation and a representative
of the CRP will be requested to appear before the Council. State Use Program
contracts may be suspended and/or certification revoked if compliance is not
immediately and consistently maintained. In order to attain re-instatement,
the CRP must apply for re-certification following the procedures outlined
in this chapter.
[
(e)
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)
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.]
(m)
[
(g)
] The
Council
[
council
], at its sole discretion, may review[
,
] or have reviewed[
,
] any CRP
participating in the State Use Program
[
approved to participate in this program
] to verify that the CRP meets
and maintains the requirements outlined
[
the applicable qualifications
contained
] in this chapter.
A CRP shall not submit any false statement
relating to certification requirements, employment of and/or number of persons
with disabilities, and nature and/or quality of products and services offered
through the State Use Program. A CRP must not serve, in whole or part, as
an outlet or front for any entity whose purpose is not the employment of people
with disabilities. A CRP shall promptly report any conflict of interest or
receipt of benefit or promise of benefit to the Council. The Council will
consider such reports on an individual basis.
[
(h)
]
Verified
[
Violation of any
of the requirements of his chapter, or verified
] instances of conflict
of interest by a CRP may result in suspension of
the
[
approval
or in disapproval of a
] CRP's eligibility to participate in
the
State Use Program
[
this program,
] and/or
revocation
of certification
[
may result in suspension or disqualification
of any product or service
].
(n)
[
(i)
]
The Council, individual
Council members, the State of Texas, or any other Texas state agency
[
Neither the council, nor any individual member, the State of Texas, nor any
other Texas state agency
] will
not
be responsible for any
loss or losses, financial or otherwise, incurred by
a
[
any
] CRP should its product
or services
not be approved for
the
State Use Program
[
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 June 30, 2006.
TRD-200603557
John W. Luna
Chairman
Texas Council on Purchasing from People with Disabilities
Earliest possible date of adoption: August 13, 2006
For further information, please call: (512) 463-3562