Tracking #2008-00142
FA/P 5/2/08 (tabled from 4/4/08), eff. 7/1/08

I:/06112801.rtf
[I:/06112801.doc]

(12 CCR 2513-1)

[Instructions: insert before line 923409.] 
Re-write of Sections 9.400 through 9.414 and deletion of Sections 9.900 - 9.900.3 were adopted as final following publication at the 5/2/2008 State Board meeting, with an effective date of 7/1/2008 (Rule-making# 06-11-28-1).  Statement of Basis and Purpose and specific statutory authority for these revisions were incorporated by reference into the rules.  These materials are available for review by the public during normal working hours at the Colorado Department of Human Services, Boards and Commissions Division, State Board Administration.

________

[Instructions: replace lines 924074 through 1405228.]
9.400  BUSINESS ENTERPRISE PROGRAM (BEP) [Rev. eff. 7/1/08]
The purpose of the Business Enterprise Program is to provide individuals who are blind with remunerative employment, ever enlarging business opportunities, and ongoing empowerment with a greater effort toward self sufficiency, and a commitment to cooperation, excellence, and a positive public image.
9.400.1  Definitions  [Rev. eff. 7/1/08]
Terms, unless otherwise indicated in these BEP rules, are defined as follows: 
"Active participation" means an ongoing process of negotiations between the State licensing agency and the Committee of Licensed Blind Vendors 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 State licensing 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 of Licensed Blind Vendors. The State licensing agency bears final authority and responsibility for the administration and operation of the Business Enterprise Program including final approval of program policies, standards, and procedures affecting the program.
"Business enterprise" means the automatic vending machines, cafeterias, snack bars, car service, shelters, counters, and such other appropriate auxiliary equipment which may be operated by blind vendors and which is necessary for the sale of newspapers, periodicals, confections, tobacco products, foods, beverages, and other articles or services dispensed automatically or manually and prepared on or off the premises in accordance with all applicable health laws, and includes the vending or exchange of changes for any lottery authorized by State law and conducted by an agency of the State within such State, including like locations being operated by operators in a training status prior to licensure.
"Cafeteria" means a food dispensing facility capable of providing a broad variety of prepared foods and beverages, including hot meals, primarily through the use of a line where the customer serves himself from displayed selections. A cafeteria may be fully automatic or some limited waiter or waitress service may be available and provided within a cafeteria and table or booth seating facilities are always provided. 
"Debt" means an obligation or liability to pay when due.
"Direct competition" means the presence and operation of a vending machine or another business which is on the same premises or in close proximity to a business enterprise, especially if it vends or sells anything normally sold by a business enterprise, and if it is so located that it attracts customers who would otherwise patronize the business enterprise. 
"Individual location" means identities and parameters that are established by the State licensing agency, and may be defined and redefined at the State licensing agency's discretion when it is in the best interest of the program.
A.  "Business enterprise", "location", "site", and "vending facility" may be used interchangeably within this document. 
B.  A vending route is considered to be a location for the purposes of this document. 
C.  In the case of a contracting arrangement, wherein the contract encompasses an entire campus, base or installation, the State licensing agency will change the definition of the location as defined in the Federal or State contract. 
D.  An individual location may only be assigned to one blind vendor, unless the State licensing agency approves another written arrangement. Only the assigned blind vendor may have a financial interest in a location.
"Licensed blind vendor" means a blind person licensed by the State licensing agency to operate a vending facility on federal, state or other property. 
"Management services" means oversight, inspection, quality control, consultation, accounting, regulating, in-service training, and other related services provided on a systematic basis.
"Operate a vending facility" means managing a business enterprise on Federal, State or other property. "Operate" and "manage" shall be used interchangeably. 
"State Licensing Agency" means the Business Enterprise Program in the Division of Vocational Rehabilitation Services, which administers the Program and issues licenses to blind persons for the operation of business enterprises on Federal, State or other property.
"Trainee" means a blind person who is participating in the formal Business Enterprise Program training course or has successfully completed the formal Business Enterprise Program training course and has been certified to operate a business enterprise in a training status prior to licensure. 
"Unassigned vending machine income" means income that accrues to the State licensing agency from commissions that vending companies pay on proceeds from vending machines on Federal, State and other property in which there is no on-site blind vendor.
"Vending facility" means automatic vending machines, cafeterias, snack bars, cart services, shelters, counters, and such other appropriate auxiliary equipment which may be operated by blind licensees and which is necessary for the sale of newspapers, periodicals, confections, tobacco products, foods, beverages, and other articles or services dispensed automatically or manually and prepared on or off the premises in accordance with all applicable health laws, and including the vending or exchange of chances for any lottery authorized by State law and conducted by an agency of a State within such State. 
"Vending machine" means, for the purpose of assigning vending machine income, a coin, currency, or credit card operated machine which dispenses articles or provides recreational or other services. 
"Vending machine income" means receipts, other than those of a blind operator, from vending machines operated on Federal, State or other property, after deduction of the cost of goods sold, including reasonable service and maintenance costs in accordance with customary business practices of commercial vending concerns, where the machines are operated, serviced, or maintained by or with the approval of a department, agency, or instrumentality of the United States or the State of Colorado; or commissions paid, other than to a blind operator, by a commercial vending concern which operates, services, and maintains vending machines on Federal, State or other property, for, or with the approval of a department, agency, or instrumentality of the United States or State of Colorado.
9.401  ELIGIBILITY [Rev. eff. 7/1/08]
In selecting persons to be operators of the Business Enterprise Program, preference shall be given to persons who are in need of employment and who have been determined to be:
A.  Blind as defined by Section 26-8.5-101(1), C.R.S.;
B.  Citizens of the United States;
C.  Able to successfully pass all State and Federal background investigations;
D.  Free from infectious diseases as defined by the Department of Public Health and Environment for food handling (6 CCR 1010-2, Section 2-201);
E.  Free from any felony conviction or pattern of misdemeanor convictions;
F.  Successful in the completion of Business Enterprise Program Training Program;
G.  Qualified to operate a business enterprise, either as a blind vendor in a training status or as a licensed blind vendor, as deemed by the State licensing agency;
H.  Eighteen (18) years of age or older; and,
I.  In possession of a high school diploma or GED. 

9.402  LICENSURE OF BLIND OPERATORS [Rev. eff. 7/1/08]
The State licensing agency shall be free to develop levels of distinction or classes of licensing.  Issuance and conditions of licenses: 
A.  The State licensing agency shall provide for the issuance of licenses for an indefinite period but subject to suspension or termination. 
B.  The State licensing agency shall further establish in writing and maintain policies which have been developed with the active participation of the State Committee of Blind Vendors and which govern the duties, supervision, transfer, promotion, and financial participation of the vendors. The State licensing agency shall also establish procedures to assure that such policies have been explained to each blind vendor. 
C.  Licensing is also contingent upon stabilized employment for a minimum of ninety (90) calendar days and determined to be successful jointly by the State licensing agency and the Division of Vocational Rehabilitation counselor.  Upon completion of ninety (90) calendar days, an evaluation will be conducted by the State licensing agency to determine if the applicant is eligible for a license or must continue training.
9.402.1  Property Right [Rev. eff. 7/1/08]
A license shall not create any property right for the licensee to whom it is issued and shall be deemed only to inform the public and other interested parties that the licensee has successfully completed the required Program training and is qualified and authorized to operate a business enterprise in the State of Colorado. 
9.402.2  Termination of a License [Rev. eff. 7/1/08]
Any license issued to a blind vendor for the operation of a business enterprise may be terminated when: 
A.  The State licensing agency finds that the business enterprise is not being operated in accordance with the rules and regulations, the terms and conditions governing the facility agreement, contract or Federal permit for the particular location, or the written agreement with the licensed blind vendor. 
B.  There is proof of improvement of vision so that the operator no longer meets the definition of blindness, for which the State licensing agency may require proof at any time.
C.  There is an extended illness with medically‑documented diagnosis of prolonged incapacity of the licensed blind vendor to operate the business enterprise in a manner consistent with the needs of the location or other available locations in the Business Enterprise Program. The blind vendor may return to the program if he/she provides documentation that his/her physician deems improved physical condition that he/she may return to work and the State licensing agency is in agreement. 
D.  The licensed blind operator withdraws from the program by notice to the program; the blind vendor cannot return to the program until all debt have been satisfied and his/her return has been evaluated and approved by the State licensing agency. He/she may regain a license upon the application for and review by the State licensing agency. 
E.  The licensed blind vendor fails to appear and manage, or arrange for management of, the location without prior written notification to the State licensing agency and approved by the State licensing agency. 
F.  If the licensed blind vendor does not abide by provisions covered by Operator Agreement, including all obligations and debt.
G.  The Operator Agreement is no longer in effect.
H.  A licensed blind vendor elects not to submit for or operate any available location. He/she will be considered to have lost the license after ninety (90) calendar days and be evaluated by the State licensing agency and the Business Enterprise Program trainer before a license may be reinstated as a licensed blind vendor. 
I.  The licensed blind vendor is convicted of a felony or pattern of misdemeanors and/or fails to self-report a felony or misdemeanor arrest or charge. 
J.  The licensed blind vendor displays violence, threats, harassment, intimidation, or other disruptive behavior. Individuals committing such acts may also be subject to criminal penalties. 

9.403  ELECTION, ORGANIZATION, AND FUNCTIONS OF A COMMITTEE OF LICENSED BLIND VENDORS
9.403.1  Elections [Rev. eff. 7/1/08]
The State licensing agency shall provide for an election among the licensed blind vendors to establish a committee that will be representative of licensed blind vendors/trainees in all areas of the State. Members shall be elected to serve a two-year term. The election shall be to replace or re‑elect those members who have served for two years. 
The State licensing agency shall provide for the election of a State Committee of Licensed Blind Vendors which, to the extent possible, shall be fully representative of all blind vendors in the State of Colorado Business Enterprise Program on the basis of such factors as geography and vending facility type with a goal of providing for proportional representation of licensed blind vendors/trainees on Federal, State, and other property. Participation by any licensed blind vendor/trainee in any election shall not be conditioned upon the payment of dues or any other fees. 
9.403.2  Purpose of the Committee of Licensed Blind Vendors [Rev. eff. 7/1/08]
The State Committee of Licensed Blind Vendors shall perform the following functions: 
A.  Actively participate with the State licensing agency in major administrative decisions and policy and program development decisions affecting the overall administration of the State's vending facility program; 
B.  Receive and transmit to the State licensing agency grievances at the request of blind vendors and serve as advocates for such vendors in connection with such grievances; 
C.  Actively participate with the State licensing agency in the development and administration of a State system for the transfer and promotion of blind vendors; 
D.  Actively participate with the State licensing agency in the development of training and retraining programs for blind vendors; and, 
E.  Sponsor, with the assistance of the State licensing agency, meetings and instructional conferences for blind vendors within the State. 
9.404  STATE LICENSING AGENCY RESPONSIBILITY [Rev. eff. 7/1/08]
The State licensing agency shall have the ultimate responsibility for the Business Enterprise Program. If the State licensing agency does not adopt written positions of the Committee of Licensed Blind Vendors, it shall notify the Committee of Licensed Blind Vendors. The State licensing agency will maintain operational procedures to secure the day to day function of the State licensing agency. 
The following are responsibilities of the State licensing agency: The State licensing agency shall: 
A.  Cooperate with the Secretary of Education in applying the requirements of the Randolph-Sheppard Act in a uniform manner (20 USC 107 – no amendments or later editions are incorporated. A copy is available for inspection at the Colorado Department of Human Services, Division of Vocational Rehabilitation, Office of the Director, 1575 Sherman Street, Denver, Colorado 80203; or any state publications depository library);
B.  Take effective action, including the termination of licenses, to carry out full responsibility for the supervision and management of each vending facility in its program in accordance with its established rules and regulations, this part, and the terms and conditions governing the permit;
C.  Submit promptly to the Secretary of Education for approval a description of any changes in the legal authority of the State licensing agency, its rules and regulations, blind vendor 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;
D.  If it intends to set aside, or cause to be set aside, funds from the net proceeds of the operation of vending facilities, obtain a prior determination by the Secretary of Education that the amount of such funds to be set aside is reasonable;
E.  Establish policies against discrimination of any licensed blind vendor/trainee on the basis of sex, age, physical or mental impairment, creed, color, national origin, or political affiliation;
F.  Furnish each licensed blind vendor/trainee a copy of the rules and regulations and a description of the arrangements for providing services, and take adequate steps to assure that each vendor understands the provisions of the permit and any agreement under which he/she operates, as evidenced by his/her signature; 
G.  Submit to an arbitration panel those grievances of any licensed blind vendor unresolved after a full evidentiary hearing;
H.  Adopt accounting procedures and maintain financial records in a manner necessary to provide for each vending facility and for the State's vending facility program a classification of financial transactions in such detail as is sufficient to enable evaluation of performance; and, 
I.  Maintain records and make reports in such form and containing such information as the Secretary of Education may require, make such records available for audit purposes, and comply with such provisions as the Secretary of Education may find necessary to assure the correctness and verification of such reports.
9.405  SET-ASIDE FUND [Rev. eff. 7/1/08]
A set-aside fund shall be established.  Set-aside may also be used in the State of Colorado for suitable site development. 
A.  The State licensing agency shall establish in writing the extent to which funds are to be set aside or caused to be set aside from the net proceeds of the operation of the vending facilities and, to the extent applicable, from vending machine income in an amount determined by the Secretary of Education to be reasonable pursuant to 34 CFR 395.3(a)(11)(iv). No amendments or later editions are incorporated. A copy is available for inspection at the Colorado Department of Human Services, Division of Vocational Rehabilitation, Office of the Director, 1575 Sherman Street, Denver, Colorado 80203; or any state publications depository library. 
B.  Funds may be set aside under paragraph A, above, of this section only for the purposes of: 
1.  Maintenance and replacement of equipment;
2.  The purchase of new equipment;
3.  Management services;
4.  Assuring a fair minimum of return to vendors; or, 
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 blind vendors licensed by the State licensing agency, after such agency provides to each such vendor information on all matters relevant to such proposed purposes.
C.  The State licensing agency shall: 
1.  Further set out the method of determining the charge for each of the above purposes listed in this section, which will be determined with the active participation of the State Committee of Licensed Blind Vendors and which will be designed to prevent, so far as is practicable, a greater charge for any purpose than is reasonably required for that purpose. 
2.  Maintain adequate records to support the reasonableness of the charges for each of the purposes listed in this section, including any reserves necessary to assure that such purposes can be achieved on a consistent basis.
9.405.1  Set-Aside Assessment [Rev. eff. 7/1/08]
A.  The set-aside assessment (or administrative fee) is a charge levied against the net proceeds of each vending facility, which represents a certain percentage of the net proceeds realized as a result of the facility’s operation. 
The blind vendor is responsible for the payment to the agency of this assessment each month.
B.	Net proceeds are determined from net sales, less merchandise cost and other allowable business expenses, plus commissions, vending machine income remitted to the licensed blind vendor, and rebates and bonuses paid to the licensed blind vendor. 
The amount of set-aside assessment may not be deducted as an expense in computing net proceeds. 
C.  The percentage of net proceeds to be paid to the agency by each blind vendor is predicated upon a schedule negotiated between the State licensing agency and the Committee of Licensed Blind Vendors, determined to be sufficient for the operation of the Business Enterprise Program, while at the same time allowing for the retention of reasonable reserves by the State licensing agency. In no event shall any negotiated schedule exceed a maximum of thirteen percent (13%), nor shall any new schedule be implemented without the approval of the U.S. Rehabilitation Services Administration. 
9.405.2  Schedule [Rev. eff. 7/1/08]
In accordance with current accounting schedule, operators shall remit payments plus business expenses determined reasonable at the discretion of the State licensing agency. 
9.406  FINANCIAL REPORTING [Rev. eff. 7/1/08]
A.  Each vending facility blind operator must file with the agency a monthly financial report of his/her business operation. 
1.  The report (turn-in) and the payment of set-aside assessments currently due the State licensing agency shall be determined according to the Operator Agreement. 
2.  If the State licensing agency’s technology permits, the blind vendor may be afforded the opportunity to file his/her reports and pay fees on-line according to the deadline provided in the Operator Agreement. 
3.  Each blind vendor must maintain and provide itemization and documentation according to the Operator Agreement.
B.  Falsification of records by the blind vendor, as validated by the State licensing agency or other State entity, will result in the termination of a blind vendor license without placing the blind vendor on probation. 
C.  Only the assigned licensed blind vendor/trainee for a location may have an economic interest in that location.  No employee of the State licensing agency, it’s contractors or subcontractors, or other licensed blind vendor/trainee shall have any personal or economic interest whatsoever in the location, unless covered of superseded by a separate written agreement with the State licensing agency.
D.  Each licensed blind vendor/trainee shall be permitted access to all financial data of the State licensing agency relevant to the operation of the Business Enterprise Program, including alternative formats and media acceptable to the licensed blind vendor/trainee and in compliance with current HIPAA and Division of Vocational Rehabilitation rules. 
9.407  VENDING MACHINE INCOME [Rev. eff. 7/1/08]
The State licensing agency will have the right to negotiate with other State agencies regarding the sharing of commission proceeds from vending machines on State property (Section 26-8.5-100 through 26-8.5-107, C.R.S.). Unassigned vending machine income will be disbursed only after determined by the State licensing agency that the licensed blind vendor/trainee is debt free to the program. All unassigned vending machine income disbursement will be applied to past due or existing debt. Distribution and use of income from vending machines on Federal, State, and other property is as follows: 
A.  Vending machine income from vending machines on Federal, State, or other property, which has been disbursed to the State licensing agency by a property managing department, agency, or instrumentality of the United States shall accrue to each licensed blind vendor/trainee operating a vending facility on such Federal property in each State in an amount not to exceed the average net income of the total number of licensed blind vendor/trainees within such State, as determined each fiscal year on the basis of each prior year's operation, except that vending machine income shall not accrue to any blind vendor in any amount exceeding the average net income of the total number of licensed blind vendor/trainees in the United States.
B.  No licensed blind vendor/trainee 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 paragraph. No limitation shall be imposed on income from vending machines, combined to create a vending facility, when such facility is maintained, serviced, or operated by a licensed blind vendor/trainee.  Vending machine income disbursed by a property managing department, agency or instrumentality of the United States to a State licensing agency in excess of the amounts eligible to accrue to licensed blind vendor/trainees in accordance with this paragraph shall be retained by the appropriate State licensing agency.
C.  The State licensing agency shall disburse vending machine income to licensed blind vendor/trainees within the State on at least a quarterly basis. Vending machine income which is retained under paragraph A of this section by a State licensing agency shall be used by such agency for the establishment and maintenance of retirement or pension plans, for health insurance contributions, and for the provision of paid sick leave and vacation time for blind vendors in such State, if it is so determined by a majority vote of blind vendors licensed by the State licensing agency, after such agency has provided to each such vendor information on all matters relevant to such purposes. Any vending machine income not necessary for such purposes shall be used by the State licensing agency for the maintenance and replacement of equipment, the purchase of new equipment, management services, and assuring a fair minimum return to vendors. Any assessment charged to blind vendors by a State licensing agency shall be reduced pro rata in an amount equal to the total of such remaining vending machine income. 
9.408  POLICY AND PROCEDURES [Rev. eff. 7/1/08]
The State licensing agency determines procedures through an internal policy manual. 
9.409  LICENSED BLIND AGREEMENTS, RESPONSIBILITIES, AND LOCATION 
9.409.1  Operator Agreement [Rev. eff. 7/1/08]
A.  The licensed blind vendor and the State licensing agency shall enter into an agreement concerning operation of a vending facility. 
B.  The Operator Agreement will: 
1.  Identify the individual location/vending facility; 
2.  Define the nature, scope and, responsibilities of the licensed blind vendor concerning operation of a specified vending facility; 
3.  Define management services offered by the State licensing agency; 
4.  Identify allowable business expenses. 
C.  Execution of the Operator Agreement
The Operator Agreement must be signed prior to the blind vendor's acceptance of an individual location/vending facility. A blind vendor's failure to execute the operator's agreement, within the allotted time period designated by the State licensing agency, shall result in the blind vendor surrendering his/her opportunity to manage the individual location/vending facility for which the agreement was prepared. A new agreement must be signed each time the blind vendor accepts the opportunity to manage an individual location/vending facility, whether permanent or temporary. 
D.  Expiration of Operator Agreement
The Operator Agreement will expire annually.  The Operator Agreement may be renegotiated prior to expiration. 
9.409.2  Location Transfer and Promotion [Rev. eff. 7/1/08]
The promotion of a blind vendor to a new location will be through a selection procedure established by the State licensing agency with participation of the Committee of Blind Vendors. 
A blind vendor shall be transferred from his/her assigned location only when the transfer will directly benefit the blind vendor or will be in the best interest of the Business Enterprise Program, giving preference to the blind vendor having demonstrated the most ability in management of a business enterprise.  If there should be two or more blind vendors with equal qualifications, then the blind vendor with the greater amount of seniority shall be awarded the location. 
A.  A location may be temporarily transferred for ninety (90) days or until such time that the location is made available. The 90 days can be extended with good cause at the discretion of the State licensing agency when the transfer is in the best interest of the Business Enterprise Program. The State licensing agency will establish policies and procedures for temporary locations. The State licensing agency will adopt and use as criteria the transfer and promotion policies established by the State licensing agency with the participation of blind vendors. 
B.  Unless otherwise determined by the State licensing agency, when a new location has been awarded to a blind vendor, he/she may not maintain their former location beyond ninety (90) calendar days. If the previous location is put out for the selection process and no qualified operators respond, the blind vendor may assume it thereafter in increments of ninety (90) calendar days.  After each ninety (90) calendar days, the location may be reviewed to be put out for the selection process.
9.410  BLIND VENDOR INDEBTEDNESS TO THE BUSINESS ENTERPRISE PROGRAM [Rev. eff. 7/1/08]
A present or past blind vendor's indebtedness to the Business Enterprise Program, which becomes past due, shall include any and all collection charges, attorney fees, court costs and all expenditures directly or indirectly incurred due to that debt. The blind vendor agrees to pay any and all debt on time. If a debt to the State licensing agency is thirty (30) days past due, the State licensing agency may refer the past due amount to collections in accordance with Colorado Department of Personnel and Administration, Office of the Executive Director, Accounts Receivable Collections Administrative Rule 1.37. If an account is referred to collections, the State licensing agency will have the right to immediately remove the blind vendor from the assigned location(s). Failure to meet payment deadlines allows the State licensing agency to offset monies due to blind vendor against existing debt without the prior approval of the blind vendor.
Unassigned vending machine income is disbursed only after it has been determined that the blind vendor is in good standing, not in arrears to the program. Otherwise, all unassigned vending machine income will be applied to debt. 
9.411  EQUIPMENT AND INITIAL MERCHANDISE INVENTORY 
9.411.1  Furnishing Equipment and Initial Merchandise Inventory [Rev. eff. 7/1/08]
All furnishing of equipment and initial merchandise inventory will be subject to availability of funds.
A.  The State licensing agency will furnish an adequate initial stock of merchandise for resale, and other related inventory items for the successful initial operation of the business enterprise for trainees or newly established locations. 
B.  The State licensing agency shall purchase or cause to be furnished suitable equipment, utensils, and supplies for initial operation, and shall provide for the maintenance and repair of such equipment for each particular business enterprise. The State licensing agency shall replace (or cause to be replaced) worn-out or obsolete equipment as required to assure the continued successful operation of the business enterprise.
C.  The blind vendor shall be responsible for routine day to day care of the equipment and items considered disposable by the State licensing agency.
D.  The State licensing agency is solely authorized to initiate repair calls. Any expenses incurred due to blind vendor origination of repair calls will be the responsibility of that blind vendor, unless individual negotiations have been made.
E.  The State licensing agency may require the blind vendor to conduct a physical inventory of all merchandise and supplies; schedule to be determined by the State licensing agency.
9.411.2  Right, Title to, and Interest in Business Enterprise Equipment and Merchandise Inventory [Rev. eff. 7/1/08]
The right, title to, and interest in all Business Enterprise equipment shall be held by the Business Enterprise Program of the State of Colorado with the exception of operator ownership. The State licensing agency shall also retain equity in the merchandise inventory of each business enterprise equal to the value of the merchandise inventory initially furnished by the State licensing agency. 
Each fiscal year, upon receiving funding, the State licensing agency shall notify the Committee of Licensed Blind Vendors in order to designate a representative subcommittee to collaborate with the State licensing agency in order to establish the amount of equipment expenditures. No blind vendor on the committee may advocate for his/her own location. 
9.412  TRAINING PROGRAM [Rev. eff. 7/1/08]
A training program shall be afforded to prospective blind vendors to qualify them to operate a business enterprise in accordance with accepted business practices. Furthermore, additional training or retraining for improving management abilities for all blind vendors shall be provided by the State licensing agency with the cooperation of the Division of Rehabilitation Services. 
All training programs for the Business Enterprise Program will be in accordance with Federal rules and regulations. Trainees must complete established training programs within a twelve (12) month period, unless special circumstances are approved by the State licensing agency. Upon completion of the training program, the State licensing agency may assign the trainee any location deemed to be suitable to the abilities of the trainee. The State licensing agency, in collaboration with the elected Committee of Licensed Blind Vendors, shall establish and make available mandatory continuing education. 
9.413  RIGHTS OF APPEAL AND FORMAL APPEAL PROCESS
9.413.1  RIGHT OF APPEAL [Rev. eff. 7/1/08]
A.  A licensed blind vendor who is dissatisfied with any determination made by the Business Enterprise Program staff that affects a provision of Business Enterprise Program services may request a formal appeal.
B.  A licensed blind vendor, upon successful completion of Business Enterprise Program training, shall be notified of his/her appeal rights.
C.  A licensed blind vendor is responsible for costs associated with his/her appeal unless otherwise ordered. 
9.413.2  Formal Appeal Process [Rev. eff. 7/1/08]
A.  A written request for a formal appeal must be submitted to the Colorado Department of Personnel and Administration, Office of Administrative Courts (OAC) within ninety (90) calendar days of the subject determination made by the Business Enterprise Program staff that affects a provision of Business Enterprise Program services.
B.  The written request must be a statement detailing the basis of appeal, including a description of the subject determination made by the Business Enterprise Program staff that affects a provision of Business Enterprise Program services and specify what relief is requested. 
C.  When a licensed blind vendor requests a formal appeal, the Business Enterprise Program is authorized to enter into settlement negotiations with the appellant as part of the litigation process in the interest of making every effort to resolve disputes at the lowest possible level. 
D.  A licensed blind vendor and the Business Enterprise Program may voluntarily participate in mediation through the OAC. Mediation may not be used to deny or delay a licensed blind vendor’s right to pursue resolution of the dispute through the formal appeal process unless both parties agree that additional time is necessary for mediation. 
9.413.3  FORMAL APPEAL BEFORE THE OFFICE OF ADMINISTRATIVE COURTS [Rev. eff. 7/1/08]
A.  When the OAC receives a request for a formal appeal, the OAC shall notify the business enterprise program that the request has been docketed and send a copy of the formal appeal request to the Business Enterprise Program. 
B.  The Business Enterprise Program shall serve a Notice to Set an Informal Pre‑hearing Conference within ten (10) calendar days of receipt of the formal appeal request from the OAC.  The purpose of the informal pre-hearing conference shall be to: 
1.  Set the date by which the Business Enterprise Program shall provide to the licensed blind vendor and to the OAC the specific incidents supporting Business Enterprise Program’s determination that affects a provision of business enterprise program services; 
2.  Set the date by which the licensed blind vendor shall provide a response to Business Enterprise Program’s notice of specific incidents supporting the Business Enterprise Program’s determination; 
3.  Set within the time period specified in paragraph D of this section, the case for hearing on the merits; and, 
4.  Arrange for expedited discovery schedules, motion dates, and pre-hearing conferences as necessary.
C.  If a licensed blind vendor fails to provide, within the prescribed time, a response to the Business Enterprise Program’s notice of specific incidents supporting the Business Enterprise Program’s determination, the OAC shall deem the formal appeal to have been abandoned by a licensed blind vendor and render an initial decision dismissing the formal appeal. In accordance with the procedures set forth in Section 9.413.4, the Office of Appeals may reinstate the formal appeal for good cause shown by a licensed blind vendor.
D.  The Administrative Law Judge shall conduct the hearing within sixty (60) calendar days of a licensed blind vendor’s request for formal appeal unless both parties agree additional time is necessary. 
E.  The Administrative Law Judge shall conduct the hearing on formal appeal in accordance with the Administrative Procedure Act, Section 24-4-105, C.R.S. The rights of the parties include: 
1.  Each party shall have the right to present his or her case or defense by oral and documentary evidence, to submit rebuttal evidence, and to conduct cross-examination. 
2.  Subject to these rights and requirements, where a hearing will be expedited and the interests of the parties will not be subsequently prejudiced thereby, the Administrative Law Judge may receive all or part of the evidence in written form or by oral stipulations.
3.  A telephonic hearing may be conducted as an alternative to a face-to-face hearing unless either party requests a face-to-face hearing in writing. The written request for a face-to-face hearing must be filed with the OAC and the other party at least ten (10) calendar days before the scheduled hearing. 
F.  At the conclusion of the hearing, unless the Administrative Law Judge allows additional time to submit documentation, the Administrative Law Judge shall take the matter under advisement. After considering all the relevant evidence presented by the parties, the Administrative Law Judge shall render an Initial Decision for review by the Colorado Department of Human Services, Office of Appeals. 
G.  The Initial Decision shall uphold, modify or reverse the Business Enterprise Program’s determination affecting a provision of Business Enterprise Program services of a licensed blind vendor. 
H.  The Initial Decision shall be rendered within thirty (30) calendar days of the completion of the hearing.
I.  When an appellant fails to appear at a duly scheduled hearing, having been given proper notice, without having given timely advance notice to the Administrative Law Judge of acceptable good cause for inability to appear at the hearing at the time, date and place specified in the notice of hearing, then the appeal shall be considered abandoned and the Administrative Law Judge shall enter an Initial Decision Dismissing Appeal. In accordance with the procedures set forth below, the Office of Appeals may reinstate the appeal for good cause shown by the Appellant. 
9.413.4  STATE DEPARTMENT, OFFICE OF APPEALS FUNCTIONS [Rev. eff. 7/1/08]
A.  Review of the Initial Decision and hearing record, and entry of the Final Agency Decision, shall be pursuant to State rules at Sections 3.850.72 - 3.850.73 (9 CCR 2503-1).
B.  Review shall be conducted by a State adjudicator in the Office of Appeals not directly involved in any prior review of the Business Enterprise Program’s determination affecting a provision of Business Enterprise Program services of a licensed blind vendor.
C.  If a licensed blind vendor is dissatisfied with the decision rendered after a full evidentiary hearing, he/she may request, within thirty (30) work days of his or her receipt of such decision, that an arbitration panel be convened by filing a complaint with the Secretary of the Department of Education, authorized by Section 5(a) of the Randolph-Sheppard Act and 34 CFR, Section 395.13(a). No amendments or later editions are incorporated. A copy is available for inspection at the Colorado Department of Human Services, Division of Vocational Rehabilitation, Office of the Director, 1575 Sherman Street, Denver, Colorado 80203; or any state publications library. 
D.  The Final Agency Decision shall advise a licensed blind vendor of his/her right to seek judicial review in the State District Court, City and County of Denver, if the appellant had timely filed exceptions to the Initial Decision.
E.  If a licensed blind vendor seeks judicial review of the Final Agency Decision, the Business Enterprise Program shall be responsible for defending the Final Agency Decision on judicial review.
9.414  CONFIDENTIALITY [Rev. eff. 7/1/08]
All information concerning licensed blind vendors/trainees given or made available to the State licensing agency, its representatives, or its employees shall be held to be confidential in accordance with Vocational Rehabilitation services and HIPAA rules and regulations. 

9.500 –9.900  (None)