New Mexico Administrative Code
Title 9 - HUMAN RIGHTS
Chapter 4 - PERSONS WITH DISABILITIES
Part 5 - BUSINESS ENTERPRISE PROGRAM POLICIES FOR BLIND VENDORS
Section 9.4.5.12 - STATE LICENSING AGENCY ORGANIZATION
Universal Citation: 9 NM Admin Code 9.4.5.12
Current through Register Vol. 35, No. 18, September 24, 2024
A. Organization and operation of the state licensing agency:
(1) The state
licensing agency (SLA) shall:
(a) cooperate
with the commissioner in applying the requirements of the Randolph-Sheppard Act
in a uniform manner;
(b) take
effective action to carry out full responsibility for the supervision and
management of each vending facility in its program in accordance with the
Randolph-Sheppard Act , the regulations at
34 CFR
395.1, the Horace DeVargas Act, Section
22-14-24 to Section
22-14-29, NMSA 1978, the SLA's
established rules and regulations, and the terms and conditions governing the
permit for establishment of a vending facility;
(c) submit promptly to the commissioner for
approval a description of any changes in the legal authority of the state
licensing agency, its rules and regulations, blind licensed manager agreements,
schedules for the setting aside of funds, contractual arrangements for the
furnishing of services by a nominee, arrangements for carrying general
liability and product liability insurance, and any other matters which form a
part of the application; and
(d) be
reasonable, if it intends to set aside, or cause to be set aside, funds from
the net proceeds of the operation of vending facilities and obtain a prior
determination by the commissioner that the amount of such funds to be set aside
is reasonable.
(2) The
business enterprise program is a program component of the New Mexico commission
for the blind.
(a) Responsibility for
supervision of commission personnel engaged in the administration of the
business enterprise program rests with the assistant director of the commission
for the blind.
(b) Day-to-day
administration of vending facilities is the responsibility of the administrator
of the business enterprise program.
(c) Monthly reports received from licensed
managers (see Appendix 9) are audited by the BEP manager and posted by the
fiscal office. These reports must be received by the BEP administrator by
the 25th of the following month. All monies received from licensed
managers are deposited to the set-aside fund by the fiscal office of the
commission for the blind.
(d) The
commission for the blind provides vocational rehabilitation for eligible blind
persons under an approved state plan. The vocational rehabilitation program and
the business enterprise program are closely coordinated so as to assure the
maximum utilization of the BEP as an employment resource for vocational
rehabilitation consumers for whom such employment is considered suitable, and
to assure that all persons placed in the business enterprise program will
receive the vocational rehabilitation services which they may
require.
(3) Central
office staff: The program is administered by the BEP administrator who reports
directly to the assistant director of the SLA. The manager is assisted by BEP
business consultants.
(4) Field
staff: The state is divided into specific geographic areas for the purpose of
administering the business enterprise program. A BEP business consultant is
assigned to each designated area to provide the link between the licensed
managers and central office, and is authorized to provide the services and
obligated to assist and support compliance with the rules and regulations of
the rehabilitation services administration and the SLA relative to business
enterprises established under the Randolph-Sheppard and/or Horace DeVargas
Acts.
(5) Licensed managers: The
individual enterprises established by the BEP are managed by licensed managers
who derive their livelihood from net profits of the operations. Licensed
managers are subject to instructions, policies, rules and regulations of the
BEP program, but are not employees of the program, the SLA or the state of New
Mexico. They do, however, have a contractual relationship with the SLA and are
required to manage the facilities and/or operations in accordance with
established rules and regulations. All licensed managers will be treated
equally regardless of the type of property in which the facility is located;
i.e., federal, state or other.
(6)
Duties of the business enterprises program manager: The duties of the business
enterprises program manager are:
(a) assures
compliance with all applicable rules, regulations and statutory
provisions;
(b) prepares program
budgets and approves expenditures, maintains records for the business
enterprise program;
(c) plans for
the development and expansion of the program and upgrading of existing
facilities;
(d) drafts program
policy, operating instructions and regulation changes as needed to make the
program more efficient or to conform to current legislative mandate;
(e) promotes the program to the general
public;
(f) actively participates
with the committee of licensed managers in accordance with
34 CFR
395.14;
(g) procures facilities through the SLA. The
SLA will pursue locations in federal, state, county, municipal and private
buildings whenever it appears the location will enable a blind person to make a
living. The selection of suitable locations for vending facilities is made
according to standards which afford the most favorable earning potential to the
prospective licensed manager.
(i) Business
enterprise locations are selected only after it has been determined that the
establishment of a vending facility at the location will contribute to the
maximum development of economic opportunities for the licensed manager and will
provide for the most productive utilization of program assets.
(ii) This determination is made on the basis
of a comprehensive economic survey and evaluation of the location.
(iii) The evaluation of locations for vending
facilities takes into consideration such factors as building population,
traffic, competition, continued availability, type of premises, potential
return upon investment, and other applicable factors.
(iv) SLA resources are available to establish
the facility successfully.
(v)
Lastly, the plan is brought before the committee of licensed managers to notify
them, and to solicit their thoughts regarding operations for a licensed manager
in the facility, including equipment, set-up and efficiency;
(h) conducts public relations
activities which promote a positive image of the program to existing and
potential host organizations, rehabilitation staff, consumers and the general
public;
(i) negotiates the terms
and conditions of building permits with property control managers;
(j) negotiates and executes operating
agreements with licensed managers;
(k) coordinates and supervises a training
program for applicants;
(l)
administers, with the participation with the committee of licensed managers,
the system for initial assignment or transfer of licensed managers;
(m) in conjunction with the business
consultant, completes the facility visit summary to assist in evaluation of the
licensed manager's performance.
(7) Duties of the BEP business consultants:
The duties of the BEP business consultants are:
(a) assist each licensed manager in operating
the business enterprise within applicable rules and regulations;
(b) oversee the development of new
installations;
(c) provide
management services to licensed managers;
(d) collect and analyze data on the operation
of each business enterprise in order to provide technical assistance and for
monitoring federal and state reporting requirements;
(e) communicate with the committee of
licensed managers on various operations.
(8) Guidelines for communication:
Communication of information is to occur so that the best interests of the
business enterprises program are served. This is best accomplished when
information is shared and acted upon by those who can respond most effectively
in the circumstances. The administrative staff of the SLA is responsible for
assuring that active communication among SLA staff and licensed managers
contributes to the effective operation of the entire business enterprises
program. Management services and operational matters are best handled by first
communicating with the appropriate business consultant. Paragraphs (A) through
(C) of this Subsection [now Subparagraphs (a) through (c) of Paragraph 8 of
Subsection A of 9.4.5.12 NMAC] describe appropriate levels to which various
types of communication should be directed.
(a)
Communications originated by a licensed manager: The licensed manager is to
maintain appropriate and professional communication with customers and building
management personnel. The point of communication for licensed managers with the
SLA is the business consultant. Circumstances in which a licensed manager may
contact the business enterprises program manager are:
(i) when a problem cannot be solved through
normal channels;
(ii) when there is
a specific complaint concerning the conduct and/or behavior of a business
consultant; and/or
(iii) when an
emergency develops and the business consultant is not available.
(b) Business consultant
communication: A business consultant is expected to maintain open and ongoing
communications with all the licensed managers in his/her area. Should a
situation require immediate action beyond the business consultant's authority,
he/she may contact the proper administrative official. All significant
information will be communicated to the BEP administrator at the earliest
opportunity.
(c) Written
communications: Any communication of major consequence is to be documented in
writing. Situations needing immediate action are to be addressed promptly by
the appropriate official and subsequently documented in writing. Records of
written documentation will be maintained in accordance with agency policy.
Written requests require written responses.
B. Management services provided by the state licensing agency:
(1) Overview of
management services: Management services include supervision, inspection,
quality control, consultation, accounting, regulating, inservice training, and
other related services provided on a systematic basis to support and improve
business enterprises operated by licensed managers. "Management services" does
not include those services or costs which pertain to the ongoing
operation of an individual facility after the initial establishment
period.
(2) Technical assistance
services: The SLA shall provide each licensed manager with:
(a) recommendations for optimizing facility
profitability;
(b) recommendations
and feedback on facility operations including quality, service and
cleanliness;
(c) possible solutions
to problems recognized by the licensed manager or brought to the licensed
manager's attention by BEP staff or the property managing agency;
(d) providing career development and
inservice training;
(e) explanation
of the SLA's procedures, policies and standards.
(3) Responsibilities of the business
consultants (BEP staff): Business consultants are required to assist licensed
managers in their district to meet business enterprise program requirements
through review and consultation on:
(a)
compliance with applicable laws and program regulations;
(b) hiring employees in accordance with rules
and regulations;
(c) compliance
with all conditions on the licensed manager's license;
(d) assuring that merchandise is:
(i) sold in accordance with the property
managing agency's agreement;
(ii)
of high quality, adequately stocked and properly displayed.
(e) monitoring performance to
ensure:
(i) standards for employee personal
appearance and hygiene;
(ii)
quality customer service;
(iii)
maintenance of sanitation and safety standards;
(iv) proper maintenance of
equipment;
(v) communications and
working relationships between the licensed manager and customers, suppliers,
employees, property managing agency and the general public;
(vi) SLA and other agency requirements for
record keeping; and
(vii) licensed
manager performance evaluations.
(4) BEP staff facility visits: BEP
consultants shall visit facilities as often as necessary to insure the
continued success of the facility. The BEP consultants will work with licensed
managers to maximize profits. Each time the consultant visits a facility,
he/she will complete a facility visit summary.
(5) Assistance of vocational rehabilitation
staff: At the request of the business consultants or other BEP staff,
rehabilitation staff will provide necessary assistance to the program when the
best interest of the licensed manager or the SLA needs such
assistance.
(6) SLA provision of
training: The SLA, with the active participation of the licensed managers
committee, shall develop and maintain training, retraining and career
development programs for all persons who are either licensed managers or
applicants for licensed managers. The SLA assures that effective programs of
vocational and other training services, including personal and vocational
adjustment, books, tools and other training materials shall be provided to all
applicants as vocational rehabilitation services. The training program shall be
open to all legally blind unemployed persons who meet the application and
eligibility requirements in Subsection 15.1.2 of this rule (9 NMAC 4.5) [now
Paragraph (2) of Subsection A of Section 9.4.5.15 NMAC]. Minimally, the
training shall consist of the following.
(a)
This training is open to all candidates for the BEP who have completed the
application process, met all eligibility requirements as listed in Subsection
15.1.2 of this rule [now Paragraph (2) of Subsection A of Section 9.4.5.15
NMAC], and been accepted into the program;
(b) Assessment and provision, as necessary,
of skills of blindness: Blindness skills of each applicant shall be assessed by
staff during a minimum of two weeks' attendance at the New Mexico orientation
center for the blind, who shall make recommendations for training based upon
skills deficiencies, if any; and
(c) Completion of approved culinary arts
program at any appropriate facility to be determined on a case-by-case basis
(approximately 16 weeks or one trimester). Previous successful food service
experience will be taken into account by the facility in assessing training
needs and by the SLA for the final recommendation on granting of a
license;
(d) On-the-job training
with a licensed manager consisting of food purchasing, menu planning,
precosting entrees, food preparation and handling; accounting procedures,
inventory control, daily sales reports, monthly reports and cash register
operation; and, sanitation, housekeeping and labor scheduling. On-the-job
training is expected to be completed concurrently with the culinary arts
program. The length of time of on-the-job training will be determined by SLA
staff and may be extended by the SLA staff, if so determined by his or her
counselor, the committee of licensed managers, trainer and/or SLA staff for the
success of the licensed manager in his/her new facility. The average length of
time for on-the-job training is six to nine months.
(7) The SLA shall certify as qualified to
operate a vending facility all trainees whom the BEP manager has determined to
have successfully completed the training program. Once the trainee successfully
completes the training program and receives his/her license to operate a
business enterprise, he/she will be placed on the ready for assignment
list.
(8) Failure to complete the
training: If, during the course of the training, it is the trainers' opinion
that this consumer cannot satisfactorily complete the BEP training program, the
BEP manager will review the case upon the written recommendation of the
trainers. If the situation warrants, the BEP manager may terminate the
consumer's training. The manager will immediately notify the consumer and the
consumer's vocational rehabilitation counselor about the termination of the
training program and the reasons for the action.
(9) Retraining and career development: Career
development training including further education and additional training for
improved work opportunities shall be provided for all licensed managers.
Opportunity for retraining shall be provided by the SLA, as needed, and shall
be made available:
(a) upon a licensed
manager's request;
(b) whenever the
SLA finds that the retraining is necessary to enable the licensed manager to
operate the vending facility successfully;
(c) any licensed manager undergoing
retraining for any purpose including improvement of skills or for career
development in the program will continue to have responsibility for the vending
facility to which he/she is assigned, and the operating agreement for such
manager shall remain in effect while he/she receives retraining or career
development services;
(d) post
employment services will be provided to licensed managers as vocational
rehabilitation services as necessary to assure that the maximum vocational
potential of such managers is achieved and suitable employment is
maintained.
C. State licensing agency responsibilities for business enterprise operations.
(1) The SLA will provide for an annual
review, including input from all vendors, of the BEP procedures manual for
possible updates.
(2) Business
enterprise equipment and fixtures: The SLA will ensure that each BEP facility
has essential equipment so as to give reasonable assurance of satisfactory
operation by the licensed manager.
(3) Additions, deletions or modifications to
equipment: The licensed manager will make no additions, deletions or
modifications to the facility and its operation, in the form of equipment,
fixtures or facilities, without first obtaining written authorization from the
SLA.
(4) Maintenance and
replacement of vending facility equipment: The SLA shall maintain, or cause to
be maintained, all vending facility equipment in good repair and in an
attractive condition and shall replace or cause to be replaced worn-out and
obsolete equipment as required to ensure the continued successful operation of
the facility (34 CFR
395.10) .
(5) Purchase of equipment by SLA: In order to
lessen the budget impact of various requests for major equipment throughout the
fiscal year, licensed managers shall make their equipment requests in writing
to the licensed managers committee, which shall review the list, and organize
purchases to ensure cost-effectiveness (volume buying of duplicate items) for
the SLA expenditures.
(6) Initial
inventory and supplies: The counselor shall provide a predetermined amount for
funds for purpose of initial inventory of merchandise for resale for operating
a facility by a licensed manager. The original dollar amount of the vocational
rehabilitation funds or inventory allocated by the counselor for start-up costs
should remain in the facility at the time of the manager's departure. Any
initial inventory needed that exceeds the predetermined amount will be provided
by the set-aside fund. Additional start-up funds provided by the BEP set-aside
fund will be repaid to the set-aside fund in an amount agreed to by the BEP
manager and the licensed manager.
(7) Existing inventory upon transfer or
dismissal: The SLA will oversee the following procedures:
(a) the outgoing licensed manager or a
representative is present and is responsible for making an accurate,
comprehensive listing of the inventory with prices, proof of prices (invoices)
and extending the inventory;
(b)
the incoming licensed manager or a representative is also present and can
exercise his/her rights as described in Subsection 18.2 of this rule [now
Subsection B of Section 9.4.5.18 NMAC];
(c) an SLA representative is present to
oversee the process.
(8)
Cleaning of facility during transfer: Upon leaving a facility, it is the
responsibility of the outgoing manager to fully clean the facility and its
equipment. If the outgoing manager fails to comply, the SLA will hire a
cleaning company to clean the facility at the outgoing manager's expense. The
cleaning cost will be deducted from the inventory being purchased by the SLA.
If the amount exceeds the amount of the inventory being purchased, or if the
outgoing manager takes his inventory, the balance forward must be paid prior to
reinstatement in the program or before transferring to another
facility.
(9) Assignment, transfer
of licensed managers: The SLA will carry out assignment and transfer of
licensed managers through facility vacancy announcements, eligibility
verification, and the establishment and convening of an evaluation committee.
(a) Facility vacancy announcement:
(i) The SLA will develop minimum
qualifications specific to the characteristics of the vacant enterprise. These
minimum qualifications will establish the level of accomplishment expected of
the applicant for a vacant facility in each of the areas to be considered by
the evaluation committee as described in Section 36 [now 9.4.5.36 NMAC].
Priority will be given licensed managers whose business enterprise was lost due
to natural disaster or other unpredictable circumstance beyond control of the
licensed manager.
(ii) The SLA
shall develop a vacancy announcement to be sent to all licensed managers when a
facility becomes available. The vacancy announcement must include location,
type of enterprise, and general description of operations; minimum
qualifications; for a new enterprise, estimates of monthly net sales based upon
potential patronage, with the disclaimer this estimate is not a guarantee of
sales; and application due date.
(b) Eligibility verification and referral to
evaluation committee: The SLA shall provide files of all bidders to the members
of the evaluation committee, that will review all applicants considering the
criteria below.
(i) The files will contain
information including but not limited to managerial and other skills and
abilities demonstrated by the licensed managers under consideration as they fit
the available facility, including handling labor needs and managing staff;
complexity of financial skills needed for food production; and customer
relations.
(ii) previous records of
the licensed manager under consideration, including consideration of timeliness
and accuracy of record keeping; customer satisfaction; improvements in profits
and customer base; safety and sanitation inspections; fee, taxes, and bill
payment history; initiative shown in upgrading skills; regularity of work
attendance; compliance with applicable rules and laws; and past evaluations by
the SLA, and/or those from previous work histories, including references.
Initial assignments shall give consideration to the unemployed qualified
licensed manager.
(iii) seniority
of eligible licensed manager.
(iv)
licensed managers on probation may not bid for another facility.
(c) Evaluation committee,
recommendation for assignment: The evaluation committee, consisting of an equal
number of licensed managers and SLA staff, will consider applicants for initial
assignments and transfers. The committee shall make recommendation to the
executive director of the SLA.
(10) Vending machine income:Vending machine
income will be managed in accordance with the following Paragraphs A through F
[now Subparagraphs (a) through (f) of Paragraph 10 of Subsection C of 9.4.5.12
NMAC].
(a) Vending machine income (commission)
from vending machines on federal property which has been disbursed to the SLA
by a property manager under the vending machine income sharing provisions of
the federal regulations shall accrue to each licensed manager operating a
vending facility on federal property in an amount not to exceed the average net
income of the total number of licensed managers, as determined each fiscal year
on the basis of each prior year's operations, except that vending machine
income shall not accrue to any licensed manager in any amount exceeding the
average net income of the total number of licensed managers in the United
States.
(b) No licensed manager
shall receive less vending machine income than he/she was receiving during the
calendar year prior to January 1, 1974, as a direct result of any limitation
imposed on such income under this ceiling (
34 CFR
395.32) .
(c) No limitation shall be imposed on income
from vending machines combined to create a vending facility if such facility is
maintained, serviced or operated by a licensed manager; however, the SLA will
retain the vending machine commissions disbursed by a federal property manager
in excess of the amounts eligible to accrue to licensed managers (
34 CFR
395.32(b);
34 CFR
395.8(b)) .
(d) The SLA will disburse vending machine
income (royalties) to qualifying licensed managers on at least a quarterly
basis (34 CFR
395.8(b)) .
(e) Vending machine income retained by the
SLA will be used in accordance with applicable federal regulations (
34 CFR
395.8(c)) .
(f) Unassigned income from non-federal
property is used to develop and enhance BEP facilities as designated by state
laws and regulations.
(11) Due process: The SLA provides procedures
for fair hearings of licensed managers' grievances. These procedures provide
each licensed manager the opportunity to seek remediation of dissatisfaction
with any SLA action arising from the operation of the BEP, and are set forth in
the following Subsections (A) through (D) [now Subparagraphs (a) through (d) of
Paragraph 11 of Subsection C of 9.4.5.12 NMAC].
(a) Informal administrative review: It is the
policy of the SLA to resolve complaints in an expeditious and facilitating
manner. These resolutions shall be accomplished through the informal
administrative review process whenever possible.
(i) A licensed manager who is dissatisfied
with any action arising from the operation or the administration of the vending
facility program may ask for an informal administrative review of the action by
filing a written request with the executive director of the commission. The
written request for an informal administrative review, filed by the licensed
manager or his designee (who may be a member of the committee of licensed
managers), must specify the action or actions with which the manager is
dissatisfied, and must be received by the executive director within 15 calendar
days of the occurrence of the action with which the manager is
dissatisfied.
(ii) Informal
administrative reviews are conducted by the SLA staff person, appointed by the
executive director, who is closest to the problem but not involved in the
action resulting in the complaint, and who can resolve the complaint in the
most expeditious manner.
(iii)
Within 15 calendar days after receipt of the written request, the executive
director shall convene an administrative review conference which shall include
the licensed manager and his or her representative, if so designated, vending
facility program staff, and the executive director's appointee. Written notice
of the time and place of the administrative review shall be sent to the manager
and his/her representative, if so designated, by the executive
director.
(iv) The informal
administrative review shall be held at a time and place convenient to the
manager requesting such review. The administrative review shall normally be
held during regular SLA working hours.
(v) The results of the informal
administrative review are to be reported in writing to the BEP administrator,
with a copy going to the licensed manager.
(b) Full evidentiary hearing: When a licensed
manager is dissatisfied with any SLA action arising from the operation or
administration of the vending facility program, such manager may file a
complaint with the SLA requesting a full evidentiary hearing. Such complaint
should identify all of the disputed issues of fact to be resolved in an
evidentiary hearing. The following procedures have been adopted by the SLA to
provide a manager with a full evidentiary hearing:
(i) Licensed managers shall be informed, in
writing, of their right to and the procedures to be followed in obtaining a
full evidentiary hearing at the time they are licensed to operate a
facility.
(ii) The manager, or his
or her chosen representative, shall request a full evidentiary hearing in
writing within 15 calendar days of the receipt of the commission's
determination as a result of the informal administrative review
process.
(iii) The written request
for a full evidentiary hearing must be transmitted to the executive director of
the commission either personally or by certified mail, return receipt
requested. The request may be transmitted through the committee of licensed
managers in accordance with these rules and regulations.
(iv) A manager is entitled to legal counsel
or other representation in a full evidentiary hearing. Such counsel shall be at
the manager's own expense or he/she may obtain any legal services available in
the community at little or no cost, such as legal aid society, neighborhood
legal services, or any other sources able and willing to provide
representation.
(v) Reader services
or other communication services shall be arranged for the manager should he so
request. Transportation costs and per diem shall be provided to the licensed
manager during the full evidentiary hearing if the location of the hearing is
in a city other than the legal residence of the manager.
(vi) The hearing will be scheduled by the SLA
for a time and place convenient and accessible to the licensed manager and the
SLA staff involved in the hearing. The licensed manager will be notified of the
place and time of the hearing and the right to be represented by legal or other
counsel, in writing, at least 15 calendar days prior to the date set for the
hearing. The licensed manager shall be provided a copy of the hearing
procedures and other relevant information necessary to enable him or her to
prepare his/her case for the hearing.
(vii) The hearing will be conducted by an
impartial and qualified hearing officer with no involvement or vested interest
in the SLA action at issue or with the operation of the affected business
enterprise. The presiding officer will conduct the hearing in accordance with
state and/or federal laws and rules governing the conduct of such proceedings.
In any case, the hearing will be conducted in a manner that avoids delay,
maintains order and provides for a full recording and reporting of the
proceedings so that a full and true disclosure of the facts and issues
occurs.
(viii) The overall time
limit for processing a full evidentiary hearing is 90 calendar days except when
a hearing is delayed for illness of the licensed manager; or delay in obtaining
evidence because of circumstances beyond the control of the licensed manager or
the commission. The time limit applies to the period extending from the date
the original request is received by the executive director until the date of
the decision.
(ix) The federal
rules of evidence do not apply to full evidentiary hearings conducted pursuant
to this section. Both the licensed manager and the SLA are entitled to present
their case by oral or documented evidence to submit rebuttal evidence and to
conduct such examination and cross-examination of witnesses that may be
required for a full and true disclosure of all facts bearing on the issue. All
papers and documents introduced into evidence at the hearing shall be filed
with the hearing officer and provided to the other party. All such documents
and other evidence submitted shall be open to examination by the parties and
opportunities shall be given to refute facts and arguments advanced on either
side of the issue.
(x) Transcripts
shall be made of the oral evidence and shall be made available to the parties.
The SLA shall pay all transcript costs and shall provide the licensed manager
with at least one copy of the transcript. The transcripts of testimony,
exhibits and all papers and documents filed in the hearing shall constitute the
exclusive record for the decision. The decision shall also set forth any
remedial action necessary to resolve the issues and dispute. The hearing
officer's determination will be based upon the facts as presented by both
parties and upon applicable law, and the existing rules of the SLA. The hearing
officer does not have the power to rule upon the legality or construction of
the rules themselves. The officer's decision will determine the relevant issues
and the facts to be ruled upon.
(xi) The hearing officer shall make a written
report of the evidence presented, the laws and rules used in determining a
resolution, and the resolution itself. This report shall be issued to the BEP
manager and the licensed manager, or his/her authorized representative, within
20 working days of the receipt of the official transcript. The decision shall
be mailed promptly to the licensed manager and the SLA. If the licensed manager
is dissatisfied with the decision, he or she may request that the secretary
(USDE) convene an arbitration panel.
(c) Arbitration of complaints after the
evidentiary hearing: The licensed manager has the right to file a request for
arbitration with the secretary (USDE) if dissatisfied with the outcome of the
evidentiary hearing. By filing a complaint with the secretary, the manager
consents to the release of information necessary for the conduct of an ad hoc
panel.
(i) The complaint must be filed in
writing and must contain a statement of grievance; the date and place of the
full evidentiary hearing; a copy of the decision and what actions have been
taken because of the decision; the part of the decision which is causing the
dissatisfaction and reason for the dissatisfaction; and a statement as to what
is required to remedy the situation.
(ii) The secretary (USDE) will convene an
arbitration panel after receiving a complaint which meets the requirements in
the abover Paragraph 12.3.10.C.1 of this rule [now Item (i) of Subparagraph (c)
of Paragraph (11) of Subsection C of 9.4.5.12 NMAC]. The decision of the panel
will be final, except as provided for in
20 U.S.C. Section
107d-2. The secretary will pay the reasonable
costs for the arbitration. An abstract of the arbitration decision will be
published in the federal register. The panel will be convened by the secretary
in accordance with (1) through (3) of this Subparagraph.
(1) The SLA shall designate one member of the
panel.
(2) The licensed manager
shall designate one member of the panel.
(3) The designees of the SLA and the licensed
manager shall together designate a third panel member who shall not be an
employee of the SLA or its parent agency. This member shall be the chairperson
of the panel.
(iii) If
either the SLA or the licensed manager fails to designate a member of an
arbitration panel, the secretary shall designate such member on behalf of such
party.
(d) Arbitration
of SLA complaints:
(i) Arbitration of SLA
complaints against federal agencies. The SLA is to resolve problems related to
the operation of a business enterprise with the full participation of the
licensed manager and the appropriate property manager. The SLA may file a
complaint with the secretary (USDE) if it determines that an agency controlling
federal property is not complying with the provisions of the Randolph-Sheppard
Act or United States department of education regulations. After the complaint
is received, the secretary will convene an arbitration panel. If the panel
finds that the federal agency is in violation of the act or USDE regulations,
that federal agency will be notified that it is expected to correct the
violation according to 20
U.S.C. Section 107 d.
(ii) The secretary pays the reasonable costs
of this arbitration. The decision resulting from the arbitration will be
published in the federal register. The arbitration panel will be convened by
the secretary in accordance with (1) thorugh (3) of this Paragraph.
(1) The SLA will designate one member of the
panel.
(2) The agency controlling
the federal property over which the dispute arose will designate one member of
the panel.
(3) The designees of the
SLA and the agency controlling the property will designate a third member who
is not an employee of the agency. This member will chair the panel.
Disclaimer: These regulations may not be the most recent version. New Mexico may have more current or accurate information. We make no warranties or guarantees about the accuracy, completeness, or adequacy of the information contained on this site or the information linked to on the state site. Please check official sources.
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