12 CCR 2513-1
BUSINESS ENTERPRISE PROGRAM

§ 9.400 
"Table of Contents"

9.400		BUSINESS ENTERPRISE PROGRAM
9.400.1		Definitions
9.401		ELIGIBILITY
9.402		LICENSURE OF BLIND OPERATORS
9.402.1		PROPERTY RIGHT
9.402.2		Termination of a License
9.403		ELECTION, ORGANIZATION, AND FUNCTIONS OF A COMMITTEE OF LICENSED BLIND OPERATORS
9.403.1		Committee of Licensed Blind Operators
9.403.2		Purpose of the Committee of Blind Operators 
9.404		STATE LICENSING AGENCY RESPONSIBILITY
9.405		SET-ASIDE FUND
9.405.1		Set-Aside Assessment
9.405.2		Schedule
9.406		FINANCIAL REPORTING
9.407		UNASSIGNED VENDING MACHINE INCOME
9.408		POLICY AND PROCEDURES
9.409		LICENSED BLIND OPERATORS' BENEFITS AND AGREEMENTS
9.409.1		BLIND OPERATOR AGREEMENT
9.409.2		BUSINESS ENTERPRISE LOCATION TRANSFER AND PROMOTION
9.410		BLIND OPERATOR INDEBTEDNESS TO THE BUSINESS ENTERPRISE PROGRAM
9.411		EQUIPMENT AND INITIAL MERCHANDISE INVENTORY
9.411.1		Furnishing Equipment and Initial Merchandise 
		Inventory
9.411.2		Right, Title to, and Interest in Business Enterprise Location Equipment and Merchandise Inventory
9.412		TRAINING PROGRAM
9.413 		RIGHTS OF APPEAL AND FORMAL APPEAL PROCESS
9.413.1 	Right of Appeal
9.413.2 	Formal Appeal Process
9.413.3		Formal Appeal Before the Office of Administrative Courts
9.413.4		State Department, Office of Appeals Functions
9.414		CONFIDENTIALITY

9.400 BUSINESS ENTERPRISE PROGRAM [Rev. eff. 7/1/08]

AUTHORITY:
20 U.S.C. § 107 et seq.
34 CFR Part 395 et seq.
8-84-201, C.R.S. et seq.
9 CCR 2503-1 § 3.850.72 - 3.850.73
6 CCR 1010-2 § 2-201
The purpose of the Colorado Business Enterprise Program is to provide blind persons with remunerative employment, enlarging the economic opportunities of the blind, and stimulating the blind to greater efforts in striving to make themselves self-supporting.
Colorado may implement a mission and vision statement, which may evolve with the era.
Colorado shall approach any gaps in information in 8-84-201, C.R.S. et seq. by applying the interpretation and intent (in federal buildings) of 20 U.S.C. § 107 et seq. and 34 CFR Part 395 et seq. to State, private, and other property.
The Colorado Business Enterprise Program carries out the Colorado State Licensing Agency responsibilities, under the Division of Vocational Rehabilitation, as applied for in accordance with 34 CFR Part 395.2.
9.400.1 Definitions [Rev. eff. 7/1/08]

The Colorado Business Enterprise Program recognizes the terms as defined in 34 CFR Part 395.1.  Additional terms are defined as follows: 

"Active Participation" means an ongoing process of negotiations and collaboration between the State Licensing Agency and the Committee of Licensed Blind Operators to participate in major administrative decisions and policy and Program development decisions affecting the overall administration of the Program.  

“Bad Debt” means a Debt that is 30 days or more past due and does not have an associated, accepted, repayment plan.
“Blind Operator” means all Program Participants, including Licensed Blind Operators, Certified Blind Operators, and Trainees.  
“Blind Operator Agreement” means a contract or other legal document executed between a Blind Operator and the State Licensing Agency, delineating the arrangement accepted by both parties, identifying all rights and obligations specific to the operation of a Business Enterprise Location as subcontracted to any awarded Blind Operator.
"Business Enterprise Location" is considered to be one-in-the-same as “Vending facility” as defined in 34 CFR Part 395.1 and includes vending machines as defined in this §, and other business as described in C.R.S. 8-84-201, including like Business Enterprise Locations being managed by Certified Blind Operators prior to licensure.
“Colorado Elected Committee” means the State Committee of Blind Vendors per 34 CFR Part 395.14 and/or Committee of Blind Vendors per 20 U.S.C § 107 b-1.
"Debt" means an obligation or liability to pay an amount of money due.
"Individual Business Enterprise Location" means the entire identity and complete parameters that are established by the State Licensing Agency for a single Business Enterprise Location, which may be established and reestablished at the State Licensing Agency's discretion when it is in the best interest of The Business Enterprise Program.

"Licensed Blind Operator" means a “vendor” as defined in 34 CFR Part 395.1(aa), regardless of status of award of an active Business Enterprise Location. 

"State Licensing Agency" means the Business Enterprise Program, housed within the Division of Vocational Rehabilitation Services, which administers the Randolph-Sheppard Vending Facility Program and issues licenses to blind persons in accordance with 34 CFR Part 395.2.

"Unassigned vending machine income" is considered to be one-in-the-same as “Vending machine income” as defined in 34 CFR Part 395.1 and is income that accrues to the State Licensing Agency from commissions that vending or other companies pay on proceeds where there is no on-site Blind Operator.  This applies to vending machines, commission income (CRS 8-84-205) and other businesses operated on Federal, State, or other property.

"Vending machine" is considered to be one-in-the-same as “Vending machine” as defined in 34 CFR Part 395.1 and includes all types of automated vending equipment which dispenses goods or services, automated teller machines or similar, or such equipment which provides recreational or other services. 

"Vending machine income" is considered to be one-in-the-same as “Vending machine income” as defined in 34 CFR Part 395.1, except that it applies to income that accrues to a Blind Operator, or the State Licensing Agency.
“Vendor Debt” means a Debt found to be legitimately owed by the Blind Operator to an industry vendor (i.e. food or beverage manufacturer or distributor, or other vendor to the Blind Operator).
9.401 ELIGIBILITY [Rev. eff. 7/1/08]

Pursuant to 20 U.S.C. § 107a.(b) and 34 CFR Part 395.7, in selecting persons to be Blind 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 20 U.S.C. § 107e and 8-84-202(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, § 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.	Reasonably possess the physical and mental aptitude to successfully manage a Business Enterprise Location as deemed by the State Licensing Agency and further defined in policy;

H.	Eighteen (18) years of age or older; and,

I.	In possession of a high school diploma or GED. 

J.	The State Licensing Agency may develop policy prescribing methods which verify that eligibility standards are met through the entire period that a participant is granted licensure, to include initial and subsequent eligibility verification.

9.402 LICENSURE AND LEVELS OF BLIND OPERATORS [Rev. eff. 7/1/08]

This Part is administered in accordance with 20 U.S.C. § 107b and 34 CFR Part 395.7.
A.	The State Licensing Agency shall provide for the issuance of licenses for an indefinite period.  Licenses are subject to Probation, Suspension, or Termination. 

B.	Upon satisfactory completion of training and subsequently operating an awarded Business Enterprise Location for ninety (90) calendar days, an evaluation will be conducted by the State Licensing Agency to determine whether the applicant is qualified for the award of a license, or if the applicant must continue training, or if it is the recommendation that the applicant seek another occupation.  

C.	The award of a license by the State Licensing Agency is contingent upon stabilized operation of a Business Enterprise Location for a minimum of ninety (90) calendar days and is determined to be successful jointly by the State Licensing Agency and Division of Vocational Rehabilitation delegates. 

Description of status differentiation among Blind Operators.

A.	“Trainee” means a blind person who has been accepted into the Business Enterprise Program and is participating in the formal Business Enterprise Program training course, including any preliminary training offered through the Division of Vocational Rehabilitation, but are not yet certified.  Trainees are:
1.	Clients of the Division of Vocational Rehabilitation and are subject to all rights and obligations as such.
2.	Not eligible for any benefits afforded to Licensed Blind Operators, financial, legal, or otherwise.
B.	“Certified Blind Operator” means a Trainee who has successfully completed the formal Business Enterprise Program training course and has been certified to manage a Business Enterprise Location, prior to licensure.  Certified Blind Operators are:
1.	Clients of the Division of Vocational Rehabilitation and are subject to all rights and obligations as such.
2.	Not eligible for any benefits afforded to Licensed Blind Operators, financial, legal, or otherwise.
3.	Eligible to bid on available Business Enterprise Locations and apply for associated beginning operating cash loan.
C.	“Licensed Blind Operator” means a blind person who has been awarded a license by the State Licensing Agency.  Licensed Blind Operators whose licenses are not in a probationary, suspended, or terminated status are:
1.	Protected by all rights and benefits afforded to Blind Operators in accordance with the Federal Randolph-Sheppard Act, 20 U.S.C. § 107 et seq., and implementing regulations, 34 CFR 395 et. seq.
2.	Eligible:
a.	To apply for beginning operating cash loan associated with an awarded Business Enterprise Location
b.	To bid on available Business Enterprise Location
c.	To run for Colorado Elected Committee membership
d.	To apply for fair minimum return
e.	For grievance and appeal rights in accordance with § 9.413
f.	For any health, medical, or retirement benefits as adopted by the body
g.	For quarterly unassigned vending machine income disbursement
h.	To be a voting member of the body of Blind Operators
D.	“Blind Operator” means any participant of The Business Enterprise Program at any stage identified above.
E.	“Probationary License Status” means a License that is associated with a SMART action plan, or other corrective action plan, and the associated Licensed Blind Operator activities are being closely monitored for progression.  This temporary status is assigned when a Licensed Blind Operator must work with their assigned Business Consultant to fulfill prescribed requirements, or face additional consequences.  Licensed Blind Operators who are in a Probationary License Status:
1.	Are protected by all rights and benefits afforded to Blind Operators in accordance with the Federal Randolph-Sheppard Act, 20 U.S.C. § 107 et seq., and implementing regulations, 34 CFR 395 et. seq.
2.	Retain the same rights and eligibility as a Licensed Blind Operator as described in § 9.402 – 3, with the exception that they
3.	Are not eligible to bid on an available Business Enterprise Location or run for Colorado Elected Committee membership if the reason they are on probation is because of bad Debt owed to the Business Enterprise Program
F.	“Suspended License Status” means a Licensed that is associate with a Blind Operator who must return to training and fulfill additional requirements in order to return to a Licensed Blind Operator or Probationary License Status.  Licensed Blind Operators who are in a Suspended License Status:
1.	Are protected by all rights and benefits afforded to Blind Operators in accordance with the Federal Randolph-Sheppard Act, 20 U.S.C. § 107 et seq., and implementing regulations, 34 CFR 395 et. seq.
2.	Do not have any of the same rights and eligibility as a Licensed Blind Operator as described in § 9.402 – 3, with the exception that they 
3.	Do retain grievance and appeal rights in accordance with § 9.413
G.	“Terminated License Status” means a Blind Operator who has had their license completely revoked, cancelled, or otherwise separated.  Licensed Blind Operators who are in a Terminated License Status:
1.	Are protected by all rights and benefits afforded to Blind Operators in accordance with the Federal Randolph-Sheppard Act, 20 U.S.C. § 107 et seq., and implementing regulations, 34 CFR 395 et. seq. for a full 30 calendar days after termination, if no appeal is in progress.
2.	Do not have any of the same rights and eligibility as a Licensed Blind Operator as described in § 9.402 – 3, with the exception that they
3.	Do retain grievance and appeal rights in accordance with § 9.413
4.	May not receive quarterly unassigned vending machine income disbursement
5.	May not bid on available Business Enterprise Locations
6.	May not serve on the Colorado Elected Committee
7.	May utilize grievance and appeals processes

The State Licensing Agency shall be free to develop other levels of distinction or classes of licensing. Issuance and conditions of licenses. 
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 earned licensure as described herein. 

9.402.2 Enforcement, Removal, and Termination of a License [Rev. eff. 7/1/08]

The enforced removal of any Blind Operator from a Business Enterprise Location may occur prior to licensure or be in conjunction with the Suspension or Termination of a license and will be managed in accordance with written policies of the program.
Individuals committing illegal acts may also be subject to civil or criminal penalties.
A license issued to a Blind Operator for the operation of a Business Enterprise Location may be placed on probation, suspension, or terminated when: 
A.	If the Licensed Blind Operator does not abide by any part of these Rules or provisions covered by Blind Operator Agreement, including all obligations and Debt.

B.	The Blind Operator Agreement has not been fully executed or is no longer in effect.

C.	The State Licensing Agency finds that the Business Enterprise Location is not being managed in accordance with the laws, rules and regulations, the terms and conditions governing the Blind Operator Agreement, contract or applicable permit terms for the particular Business Enterprise Location, or other written agreement with the Blind Operator. 

D.	Program Eligibility, as delineated in section 9.401, is no longer met, including if there is proof of improvement of vision so that the Blind Operator no longer meets the definition of blindness, for which the State Licensing Agency may require proof periodically and by vendors selected according to Colorado, department, and division procurement rules and source selection methods.

E.	There is an extended illness with medically documented diagnosis of prolonged incapacity of the Licensed Blind Operator to manage the Business Enterprise Location in a manner consistent with the needs of the Business Enterprise Location or other available Business Enterprise Locations in the Business Enterprise Program. The Blind Operator may return to The Business Enterprise Program if they provides documentation that their physician deems improved physical condition that they may “return to work” and the State Licensing Agency is in agreement. 

F.	The Licensed Blind Operator withdraws from The Business Enterprise Program by notice to The Business Enterprise Program.

G.	A Licensed Blind Operator elects not to accept any Business Enterprise Location and fail to request for an available Business Enterprise Location to be put out for bid, and then successfully bid on it. They will be considered to have a Terminated License after ninety (90) calendar days and all program re-entry rules and practices shall apply. 

H.	Falsification of records by the Blind Operator, as validated by the State Licensing Agency or other State entity, will result in the Termination or Suspension of a License without placing the Blind Operator on probation. 

Program Re-entry
When any former Licensed Blind Operator requests to return to The Business Enterprise Program, they must:
A.	Meet all eligibility requirements in § 9.401
B.	Be free of bad Debt to the Business Enterprise Program
C.	Be free of bad Debt to industry vendors which may impact their success in managing a Business Enterprise Location
D.	Be subject to existing application and review process for new applicants
E.	Be required to fulfill training as prescribed by the State Licensing Agency, in order to become re-certified and licensed
9.403 COLORADO ELECTED COMMITTEE: ELECTION AND PURPOSE OF A COMMITTEE OF LICENSED BLIND OPERATORS

This entire Part is managed in accordance with 20 U.S.C. § 107b-1 and 34 CFR Part 395.14.
The Colorado Elected Committee is not regulated by the Governor’s Office of Boards and Commissions or equivalent and is provided in accordance with 20 U.S.C. § 107b-1 through the State Licensing Agency, with Active Participation by the Colorado Elected Committee.
The Colorado Elected Committee bylaws are developed by the entire body of Blind Operators, with oversight and acceptance by the State Licensing Agency.

9.403.1 Elections [Rev. eff. 7/1/08]

The State Licensing Agency shall provide for an election among the Licensed Blind Operators to establish a committee that, to the extent possible, will be representative of: 
A.	All Business Enterprise Location types 
B.	All areas of the State
Members shall be elected to serve a two-year term. 

Participation by any Blind Operator in any election shall not be conditioned upon the payment of dues or any other fees in accordance with 34 CFR Part 395.14(a).  Dues or fees do not mean Debt or bad Debt.

9.403.2 Purpose of the Colorado Elected Committee [Rev. eff. 7/1/08]

The Colorado Elected Committee shall perform the following functions:
 
A.	The Colorado Elected Committee is responsible for Active Participation with the State Licensing Agency and perform functions in accordance with 20 U.S.C. §107b-1(3) and 34 CFR Part 395.7(c), 395.9, 395.14 et. seq., and 395.36(a), as defined in these rules, §9.400.1 related to:
1.	Major administrative decisions, to include:

a.	Setting out the method for determining budget line items for expenditure of set-aside (these rules, § 9.411.2).

2.	Policy, to include those in accordance with these rules, §9.404 which govern the Blind Operators’:

a.	Duties

b.	Supervision

c.	Transfer and promotion

d.	Financial participation

3.	Program development decisions which affect the overall administration of the State's Business Enterprise program, to include:

a.	Development and administration of a State system for the transfer and promotion of Blind Operators 

b.	Development of training and retraining programs for Blind Operators

B.	Receive and transmit to the State Licensing Agency grievances at the request of Licensed Blind Operators and serve as advocates for such Licensed Blind Operators in connection with such grievances; 

C.	Sponsor, with the assistance of the State Licensing Agency, meetings and instructional conferences for Blind Operators within the State. 

9.404 RESPONSIBILITIES [Rev. eff. 7/1/08] 

STATE LICENSING AGENCY

The State Licensing Agency must act as prescribed in 20 U.S.C. § 107 et seq. and 34 CFR Part 395 et seq. and responsibilities are further delineated as follows and in policy.
The State Licensing Agency shall have the ultimate responsibility for the Business Enterprise Program. When the State Licensing Agency does not adopt written recommendations of the Colorado Elected Committee, it shall notify the Colorado Elected Committee. 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 Federal Secretary of Education in applying the requirements of the Randolph-Sheppard Act in a uniform manner (20 U.S.C. § 107 et seq.)

B.	Take effective action to carry out full responsibility for the supervision and collaborative management of each Business Enterprise Location in the program in accordance with its established rules and regulations, this part, and the terms and conditions governing the contracts, agreements, permits and Blind Operator Agreements.  This includes the removal of a Blind Operator from their awarded Business Enterprise Location, Probation, Suspension, or Termination of Licenses in accordance with § 9.402.2.

C.	Take diligent action to enforce Blind Operator responsibilities, performance, and overall mission compliance to include systematic analysis of financial and other performance through evaluations and/or audits. 

D.	Submit promptly to the Secretary of Education for approval a description of any changes in

1.	The legal authority of the State Licensing Agency, 

2.	Its rules and regulations, 

3.	Blind Operator Agreements, 

4.	Schedules for the setting aside of funds, 

5.	Contractual arrangements for the furnishing of services by a nominee, 

6.	Arrangements for carrying general liability and product liability insurance, and 

7.	Any other matters which form a part of the application (34 CFR Parts 395.2 and 395.3);

E.	Survey sites in order to identify whether they are satisfactory for a Business Enterprise Location in accordance with 20 U.S.C. § 107a(d) and provide a waiver to the agency which has a non-satisfactory site, limiting the term and defining the conditions of the waiver.

F.	Provide and train on documents provided upon request to any Blind Operator at any time.
G.	Submit to an arbitration panel those grievances of any Licensed Blind Operator unresolved after a full evidentiary hearing in accordance with 20 U.S.C. §§ 107b(6) and 107d-1(a), upon written receipt of such request by the Licensed Blind Operator or their representative.

H.	For each Business Enterprise Location and for the entire Business Enterprise Program, adopt accounting procedures and maintain financial and other records in a manner necessary to provide detail as is sufficient to 

1.	Enable evaluation of performance and

2.	Comply with Secretary of Education requirements

I.	Provide financial reporting relevant to Business Enterprise Program on at least a quarterly and annual basis, pursuant to 20 U.S.C. § 1071b-1.1.

J.	Protect and manage all State Assets assigned to the Business Enterprise Program including purchase, transition, and tracking.

K.	Only use set-aside funds for appropriate purposes, as identified in 20 U.S.C. § 1071b-3 and 34 CFR Part 395.8(c), and manage set-aside in accordance with these rules §9.405.

L.	Notify Blind Operators of the set-aside schedule in accordance with these rule § 9.405.2.

M.	Ensure any training services related to any Blind Operator, which have been incorporated into the standardized or individualized training curriculum, are provided to Blind Operators as vocational rehabilitation services under the Rehabilitation Act of 1973 (Pub. L. 93-112), as amended.  This is not limited to, but includes personal and vocational adjustment, books, tools, and other training materials.

N.	Ensure the opportunity for Active Participation in accordance with these rules §9.403.

O.	Attempt to resolve day to day problems with Permit on-site official informally with awarded Blind Operator of the Individual Business Enterprise Location (34 CFR Part 395.36(a)).

P.	Be solely authorized to initiate repair calls.

Q.	Further establish in writing and maintain policies which have been developed with the Active Participation in accordance with § 9.403.2 of these rules.

R.	Establish additional procedures as necessary to assure that rules and policies have been explained to each Blind Operator. 

S.	Determine procedures through an internal document.
The following are responsibilities of the Blind Operator. The Blind Operator Shall:
A.	Not assume duties exclusive to the State Licensing Agency as listed in these Rules, § 9.404.

B.	Conduct all business in a just and truthful manner.
C.	Be responsive to communications received through modern means in order to responsibly manage business.  For example, electronic mail, delivered mail, phone recordings, and other methods reasonably accessible to the blind.
D.	Notify Business Enterprise Program of
1.	Any litigations in which they is a party defendant in a case that involves any services provided as a result of participation in the Business Enterprise Program.
2.	Complaints of alleged violations or legal issues that could jeopardize a Business Enterprise Location permit or agreement with property management, or jeopardize Business Enterprise Program’s priority under the Randolph-Sheppard Act.
3.	Facility and personal emergency and contact information, especially for legal correspondence
4.	Preferred electronic and hard-copy reading format.
E.	Submit a request for a full evidentiary hearing in accordance with these rules, § 9.413, or after such hearing, file a complaint with the Secretary in order to initiate an arbitration panel if so desired, in accordance with 20 U.S.C. § 107d-1(a);
BLIND OPERATORS WHO ARE ASSIGNED/AWARDED BUSINESS ENTERPRISE LOCATION/S SHALL:
A.	Abide by all rules and regulations and program policies governing the operation of the Business Enterprise Location.
B.	Impress upon their employees the importance of these Rules and the Blind Operator Agreement and shall be responsible for the actions of their employees concerning relative to the Business Enterprise Program.
C.	Actively engage in the management of the Business Enterprise Location.  
D.	Be available for all necessary visits to the facility and cannot assign, delegate, or subcontract the totality of the Blind Operator duties to subcontractors or any other third party.
E.	Appear and manage, or arrange for the management of, the Business Enterprise Location, or request an exception in writing, and receive, prior approval by the State Licensing Agency and approved by the State Licensing Agency.
F.	Provide excellent service to the facility and its customers, maintain a professional appearance, and act in a professional manner while managing a Business Enterprise Program facility, or engaging in related activities.
G.	Perform within any contract, permit, or agreement, as authorized or required by the Business Enterprise Location’s property management, franchise agreement, management services agreement, state interagency agreement, or other.  The Blind Operator will actively initiate full understanding of such terms and conditions and will communicate any developments which may have a negative impact on professional relationships, the Business Enterprise Location, the reputation of Business Enterprise Program, or the reputation of the Body of Blind Operators.
H.	Not engage in any conduct that is detrimental to Business Enterprise Program’s interest in the Business Enterprise Location, its statutory priority, its permits or agreements, or its equipment or other inventory.
I.	Be responsible and financially liable for the accurate and proper reporting of all 
1.	Sales transacted through the Business Enterprise Location 
2.	Business Enterprise Program assets entrusted to the Blind Operator
J.	Ensure compliance with all laws applicable in the operation of the associated business at all times.  
K.	Not engage in or permit harassment, violent behavior, threat of violent behavior, intimidation, or other disruptive behavior directed towards another Blind Operator, Business Enterprise Program staff member, subordinate, client, customer, or property.  Possession of weapons is prohibited in or on any state or federal facility, including in vehicles.
L.	Self-report any felony or misdemeanor arrest or charge.
M.	Comply with the provisions of CRS 8-17.5-101 et seq. and shall not knowingly employ or contract with an illegal alien to perform work or enter into a contract with a subcontractor that knowingly employs or contracts with an illegal alien.  
N.	Acquire and maintain all appropriate records and business licenses applicable to the Business Enterprise Location.  
O.	Allow Business Enterprise Program, the State, the federal government, access to perform semi-annual evaluations, audits and/or inspections of records at any time, to assure compliance with the State or federal government’s rules and regulations or to evaluate the Blind Operator’s performance.
P.	Comply with all reasonable requests made in the course of an investigation by the Colorado Department of Labor and Employment
Q.	Furnish and give access to all documents and reports for business operations at the Business Enterprise Location, which are required by State or Federal governments.
R.	Implement, or assist in the implementation of, the necessary systems, methods and controls for tracking, monitoring, and reporting of vending machine sales.  
S.	Acquire merchandise, utensils, and consumables as determined by Business Enterprise Program to be sufficient to satisfactorily maintain the facility (beyond initial inventory), in accordance with the Business Enterprise Program Inventory Policy and Process and with CRS § 24-30 202.4 regarding State Collections.  
T.	Not neglect, abuse, or relocate State owned equipment and manage it according to manufacturer recommendations.
U.	Be responsible for the payment of required business licenses, business insurances, communications products, and consumable inventory (beyond initial inventory), and business needs not otherwise provided for.
V.	Submit, in accordance with the prescribed schedule and method per these rules §§ 9.405.2 and 9.406
1.	The standardized monthly financial turn-in Report (“Turn-in”) to the Business Enterprise Program.
2.	The set-aside payment to the Business Enterprise Program per these rules.
3.	Timely payments to repay the services established by Business Enterprise Program on behalf of the Blind Operator.
4.	Items which must be returned upon the transition out of the Business Enterprise Location according to the Blind Operator Agreement.
W.	Pay all Debts associated with participation in the Business Enterprise Program (including to vendors of the facility/business operation), timely.
X.	Give a minimum 30 day notice to the Business Enterprise Program of intention to vacate or discontinue managing the awarded/assigned Business Enterprise Location on a daily business.
Y.	Understand that if they vacate, discontinue managing, or are the subject of an enforced removal, they may be held responsible for costs incurred as a result of the transition.
Z.	Vacate facilities in an acceptable condition, conducive to an immediate transition between Blind Operators with no closure time required solely due to the physical condition of the Business Enterprise Location.
9.405 SET-ASIDE FUND [Rev. eff. 7/1/08]

A set-aside fund shall be established and managed, pursuant to 20 U.S.C. § 107b(3) and 34 CFR Part 395.3(a)(11)(iv) and 395.9(a). 
A.	Pursuant to 34 CFR Part 395.9(b), set-aside funds may expended only for the purposes of: 

1.	 Maintenance and replacement of equipment;

2.    Purchase of new equipment;

3.    Management services;

4.    Assuring a fair minimum of return to Licensed Blind Operators; or, 

5.    Retirement or pension plans, health insurance, and other specified benefits after a vote of the 
entire body

B.	The State Licensing Agency shall: 

1.	Utilize the Colorado, department, and division procurement rules and source selection methods in order to prevent 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 §, 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 Business Enterprise Location, which represents a certain percentage of the net proceeds realized as a result of the facility's operation. 
B.	The Blind Operator is responsible for the payment of this assessment to the State Licensing Agency each month. 
C.	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 Operator, and rebates and bonuses paid to the Licensed Blind Operator. 

D.	The amount of set-aside assessment may not be deducted as an expense in computing net proceeds. 
E.	The set-aside (percentage of net proceeds) to be paid to the State Licensing Agency by each Blind Operator is predicated upon a schedule negotiated between the State Licensing Agency and the Colorado Elected Committee, and determined to be sufficient for the operation of the State Licensing Agency.  The set-aside schedule must 

1.	Allow for the retention of reasonable reserves by the State Licensing Agency. 

2.	Not exceed a maximum of thirteen percent (13%) per Business Enterprise Location

3.	Be approved by the U.S. Rehabilitation Services Administration prior to implementation 

9.405.2 Schedule [Rev. eff. 7/1/08]

In accordance with current accounting schedule, Blind Operators shall remit payments plus business expenses determined reasonable at the discretion of the State Licensing Agency, as reasonably notified. 

9.406 FINANCIAL REPORTING [Rev. eff. 7/1/08]
A.	Each Blind Operator who is awarded a Business Enterprise Location must file with the agency a monthly financial report of their business operation. 

B.	The report (turn-in) and the payment of set-aside assessments currently due the State Licensing Agency shall be determined according to written policy. 

C.	If the State Licensing Agency's technology permits, the Blind Operator may be afforded the opportunity to file their reports and pay fees on-line according to the deadline in written policy. 

D.	Each Blind Operator must maintain and provide itemization and documentation according to the Blind Operator Agreement.

E.	Only the assigned Blind Operator for a Business Enterprise Location, or Blind Operator designee, may have an economic interest in that Business Enterprise Location. No employee of the State Licensing Agency, it's contractors or subcontractors, or other Blind Operator shall have any personal or economic interest whatsoever in the Business Enterprise Location.   Notwithstanding the foregoing, economic interest may be held by an authorized third party, as signified by a separate written agreement with the State Licensing Agency.

F.	Each Blind Operator shall be permitted access to all financial data of the State Licensing Agency relevant to the operation of the Business Enterprise Program, including reasonable alternative formats and media acceptable to the Blind Operator and in compliance with current HIPAA and Division of Vocational Rehabilitation rules (34 CFR Part 395.12). 

9.407 UNASSIGNED VENDING MACHINE INCOME [Rev. eff. 7/1/08]

Unassigned vending machine income shall be accrued and disbursed in accordance with 20 U.S.C. § 107d-3.  Colorado applies references to “federal” in the Code to State and other Business Enterprise Locations as well. 

A.	Unassigned vending machine income shall be disbursed to each Licensed Blind Operator in accordance with policy, which shall observe:
1.	The disbursement of unassigned vending machine income to each individual Licensed Blind Operators shall be in an amount not to exceed the average net income of the total number of Blind Operators within Colorado or average net income of the total number of Blind Operators in the United States.  Excess unassigned vending machine income, per this § shall be retained by the State Licensing Agency.

2.	The State Licensing Agency shall disburse unassigned vending machine income to Blind Operator within the State on at least a quarterly basis.

3.	Any unassigned vending machine income not necessary for such purposes shall be used by the State Licensing Agency in accordance with 34 CFR Part 395.9(b) and these Rules §9.405.

4.	Any assessment charged to Blind Operators by a State Licensing Agency shall be reduced pro rata in an amount equal to the total of such remaining unassigned vending machine income. 

5.	Distributions are based on unassigned vending machine income, accounted for and managed collectively from every type of Business Enterprise Location and collectively from federal, State, and other property types.

B.	Individual Blind Operators shall only receive disbursement after it has been determined by the State Licensing Agency that the Blind Operator is in good standing and free of bad Debt to the Business Enterprise Program. 
C.	All unassigned vending machine income disbursement
1.	Shall be calculated so that the final total disbursed has been offset by any set-aside due on the gross commission income of each Blind Operator.
2.	May be applied to existing Debt of a Blind Operator. 
3.	Shall be applied to existing bad Debt of any Blind Operator.  
9.409 BLIND OPERATOR AGREEMENTS, RESPONSIBILITIES, AND BUSINESS ENTERPRISE LOCATION [Rev. eff. 7/1/08]

9.409.1 Blind Operator Agreement [Rev. eff. 7/1/08]

A.	Each Blind Operator and the State shall enter into an agreement concerning operation of any Business Enterprise Location.

B.	The agreement shall not be effective until signed by the Blind Operator and the delegated authority on behalf of the State of Colorado.

C.	The execution of such agreement must occur for each Blind Operator in each Business Enterprise Location, prior to any Blind Operator performance or transition into such Business Enterprise Location.

D.	The State Licensing Agency may develop further policy governing agreements for true emergency transitions, as approved by the Colorado Department of Labor and Employment, Procurement and Contracts Services Division.

E.	Unless otherwise specified within governing Laws, Regulations, or these Rules, the State of Colorado views all Blind Operators as contractors for the purpose of carrying out any executed contract or agreement, including for the enforcement of rights and obligations.

F.	The Blind Operator Agreement will: 

1.	Identify each party’s full legal name, business address, and legal notification address.

2.	Identify the transition in/start date.

3.	Identify the Individual Business Enterprise Location; 

4.	Define the nature, scope and, responsibilities of the Blind Operator concerning the operation of the Individual Business Enterprise Location; 

5.	Describe management services offered by the State Licensing Agency and direct to resources which further define; 

6.	Identify allowable business expenses in accordance with § 9.405.1. 

7.	Identify items which must be returned upon the transition out of the Business Enterprise Location.

G.	Execution of the Blind Operator Agreement

The Blind Operator Agreement must be signed prior to the Blind Operator's acceptance of an Individual Business Enterprise Location. A Blind Operator's failure to execute the Blind Operator's agreement, within the allotted time period designated by the State Licensing Agency, shall result in the Blind Operator surrendering their opportunity to manage the Individual Business Enterprise Location for which the agreement was prepared. A new agreement must be signed each time the Blind Operator accepts the opportunity to manage any Individual Business Enterprise Location, whether permanent or temporary. 
Signature of the Blind Operator Agreement signifies their receipt of all information necessary to fully understand their responsibilities at the respective Business Enterprise Location, in compliance with 34 CFR Part 395.3(a)(11)(vi).
The Blind Operator Agreement will expire annually or periodically in accordance with the written policies of the program. The Blind Operator Agreement may be renegotiated prior to expiration. 

9.409.2 Business Enterprise Location Transfer and Promotion [Rev. eff. 7/1/08]

This rule is written in accordance with §9.403.2 of these rules.

The transfer or promotion of a Blind Operator to a new Business Enterprise Location will be through a Transfer and Promotion process, policy, or procedure, which will include provisions for:

A.	Definitions specific to transfer and promotion, if applicable.
B.	Temporary Business Enterprise Location management and prescribed minimum or maximum period of time.
C.	Length of time a Blind Operator may maintain their former Business Enterprise Location upon award of a new permanent Business Enterprise Location.
A Blind Operator shall be transferred to a Business Enterprise Location, or from their assigned Business Enterprise Location only when the transfer will directly benefit the Blind Operator or will be in the best interest of the Business Enterprise Program, giving preference to the Blind Operator having demonstrated the most ability in management of a Business Enterprise Location.
For the purposes of this Section, the following may each be considered to be Individual Business Enterprise Location.
A.	A vending route
B.	Premises as defined by legal agreement - wherein the agreement premises encompass an entire campus, base, installation, or other pairing/clustering of physical sites, the State Licensing Agency may change the established parameters of the Individual Business Enterprise Location to reflect the entire premises as defined in the Federal or State contract. 
No limitation shall be imposed on vending machine income, combined to create a Business Enterprise Location, when such facility is maintained, serviced, or managed by a Blind Operator. 

An Individual Business Enterprise Location shall only be assigned to one Blind Operator, unless the State Licensing Agency approves an exception through written documentation.

9.410 BLIND OPERATOR INDEBTEDNESS [Rev. eff. 7/1/08]
Blind operators participating in the Business Enterprise Program must pay any and all Debt on time. A present or past Blind Operator’s indebtedness to the Business Enterprise Program that 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. 
It is solely the responsibility of the Blind Operator to pay their Debt.  If it becomes necessary for the Business Enterprise Program to become an intermediary to satisfy vendor Debt:
A.	The State Licensing Agency will put the Blind Operator license on probation, suspension, or termination.
B.	The State will pay the Debt.
C.	The State will invoice the Blind Operator for the full amount of Debts paid to the Vendors.
D.	An administrative fee will be added to the invoice and the Debt will become the Blind Operator’s Debt to the State, which will be managed as bad Debt in accordance with this § 9.410 and § 9.407.
These actions in this § 9.410 may also be initiated if any Blind Operator: 
A.	Acts independently of the State in order to assume responsibilities of the State, including but not limited to authorizations or requests which are the duty of a State Licensing Agency staff member as identified in these rules section 9.404.
B.	Vacates the Business Enterprise Location in an unsatisfactory manner, per these rules section 9.404.
State agencies refer all Debt to State Collections, once the payment becomes 30 days past due and no payment arrangement is agreed upon, in accordance with CRS § 24-30 202.4.The State Licensing Agency may refer any bad Debt amount to collections in accordance with Colorado Department of Personnel and Administration, Office of the Executive Director, Accounts Receivable Collections Administrative Rule 1.37.
Impact of Bad Debt Owed to the Business Enterprise Program
If a Blind Operator is referred to collections for Bad Debt:
A.	The State Licensing Agency has the right to remove the Blind Operator from any assigned/awarded Business Enterprise Location(s). 
B.	Monies due to Blind Operator shall be offset against existing bad Debt, without the prior approval of the Blind Operator.  This includes quarterly unassigned vending machine income disbursements in accordance with § 9.407.
C.	The Blind Operator is not eligible to bid on an available Business Enterprise Location.
D.	The Blind Operator is not eligible to run for Colorado Elected Committee membership.  If they are already on the Colorado Elected Committee, it will be managed by policy or on a case by case basis if none exists.
9.411 EQUIPMENT AND INITIAL MERCHANDISE INVENTORY [Rev. eff. 7/1/08]

9.411.1 Furnishing Equipment and Initial Merchandise Inventory [Rev. eff. 7/1/08]

All furnishing of equipment and initial merchandise inventory will be managed in accordance with 20 U.S.C. § 107b-2, 34 CFR Parts 395.3 and 395.6, and subject to availability of funds.  Policies, procedures, and processes may be written to further identify methods for the management of State equipment and consumable inventory establishment and transfer.
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 Location for newly established Business Enterprise Locations and for incoming Blind Operators in established Business Enterprise Locations previously managed by another Blind Operator or program operated stands. 

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 equipment and replacement of worn out or obsolete equipment for each Individual Business Enterprise Location as required to assure its continued successful operation.

C.	The Blind Operator 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 may require the Blind Operator 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 Location Equipment and Merchandise Inventory [Rev. eff. 7/1/08]

The right, title to, and interest and equity in all Business Enterprise Location equipment shall be held by the Business Enterprise Program of the State of Colorado with the exception of Blind Operator ownership per 34 CFR Part 395.6. 

In order to satisfy these rules § 9.403.2(a)1(a), Each fiscal year, in anticipation of receiving spending authority, the State Licensing Agency shall seek Active Participation from  the Colorado Elected Committee in order to designate a representative subcommittee to collaborate with the State Licensing Agency in order to establish the amount of equipment expenditures. 
All resulting decisions are contingent upon receipt of actual funding and spending authority and are subject to applicable procurement rules and regulations.  
9.412 TRAINING PROGRAM [Rev. eff. 7/1/08]

This Part is written pursuant to 20 U.S.C. § 107d-4, 34 CFR Part 395.11, and these rules §§ 9.403.2(3)(b) and 9.404, to achieve maximum vocational potential through the Division of Vocational Rehabilitation.

A training program shall be afforded to Trainees to certify them to manage a Business Enterprise Location in accordance with accepted business practices. After any necessary personal and vocational adjustment training, 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 Business Enterprise Location deemed to be suitable to the abilities of the Trainee, or the Trainee may participate in the transfer and promotion process, with the potential to compete and be awarded a Business Enterprise Location.  The State Licensing Agency may develop policy to encourage, promote, or make mandatory continuing education and/or upward mobility. 
Training and curriculum shall include the following to Blind Operators with the capacity to operate a vending facility, as needed.
A.	Personal and vocational adjustment 
B.	Training:
1.	All aspects of a Business Enterprise Location 
2.	On the job
3.	Upward mobility 
4.	Post-employment 
C.	Training materials
D.	Follow-along services
Prior to becoming Certified, each Trainee shall be provided a hard or electronic copy of or link to:
A.	20 U.S.C. § 107 et seq.
B.	34 CFR Part 395 et seq.
C.	8-84-201, C.R.S. et seq.
D.	These rules
E.	The standardized Blind Operator Agreement
A description of the arrangements for providing services and training on each of these documents shall be provided through classroom training and associated documentation, which shall include a signed acknowledgement.
9.413 RIGHTS OF APPEAL AND FORMAL APPEAL PROCESS [Rev. eff. 7/1/08]

Trainees and Certified Blind Operators may seek council of a Colorado Elected Committee member for a grievance in accordance with these Rules, § 9.403.2(b) and shall refer to the DVR Policy Manual for any mediation, informal appeal, or formal appeal of a State Licensing Agency decision.

Licensed Blind Operators whose license is in any status, who wish to pursue a grievance or appeal, shall act in accordance with the following.

9.413.1 Right of Appeal [Rev. eff. 7/1/08]
A.	A Licensed Blind Operator who is dissatisfied with any determination made by the Business Enterprise Program staff and/or Division of Vocational Rehabilitation agency representative, which concerns the provision of Business Enterprise Program services, may request a:

1.	Grievance in accordance with these Rules, § 9.403.2(b) and/or;

2.	An informal review in accordance with this § 9.413 et seq. and/or;

3.	A formal appeal in accordance with this § 9.413 et seq.

B.	A Licensed Blind Operator is responsible for costs associated with their appeal. 

C.	NOTIFICATION OF RIGHTS TO REVIEW AND REQUEST MEDIATION

All Blind Operators through the Business Enterprise Program training, shall be notified of Licensed Blind Operator appeal rights.
D.	PROVISION OF BUSINESS ENTERPRISE PROGRAM SERVICE(S) DURING REVIEWS AND MEDIATION
When a review request is made, all Business Enterprise Program services being provided under a current plan shall continue as specified until the review and/or appeal is completed, unless an Licensed Blind Operator or, as appropriate, the individual’s representative requests a suspension, reduction, or termination of services, or if there is a risk to public safety or stability of The Business Enterprise Program. If the disputed service(s) and/or good(s) was obtained through proven misrepresentation, fraud, collusion, or criminal conduct by the individual or the individual’s representative, the good or service shall be terminated immediately.
E.	Additional Services during Appeals
When an informal review or formal appeal request concerns an issue which may impact determination of ineligibility for Business Enterprise Program services and/or Transfer and Promotion, new or additional service(s) or good(s) shall not be provided.
F.	DOCUMENTATION OF REVIEWS AND MEDIATION
The Blind Operator record shall contain documentation concerning actions and decisions relating to requests by Blind Operators for an informal review or formal appeal of Business Enterprise Program staff determinations.
G.	INFORMAL REVIEW
The Licensed Blind Operator may request an informal review by the Program Manager in order to resolve the issue(s) under dispute with or without the conduct of a formal appeal. Informal review begins with a request for the Program Manager to review a decision concerning the provision of Business Enterprise Program services. If the individual is not satisfied with the decision made by the Program Manager, the individual may then submit a written request for review to the Blind and Low Vision Services Manager to review the decision. Informal review shall be conducted in a timely manner that shall not delay a formal appeal and within thirty (30) days of the initial request unless both parties agree that additional time is necessary. If the informal review does not resolve the issue(s), and the formal appeal process has not been requested, the individual may request a formal appeal. 
When a formal appeal has been requested and the informal review does not resolve the dispute within the time established through mutual agreement, the formal appeal shall be conducted within the time frames outlined for the formal appeal process. An individual is not required to go through an informal review prior to or instead of a formal appeal.
H.	FORMAL APPEAL: FULL EVIDENTIARY HEARING
1.	This is written pursuant to 20 U.S.C. § 107d-1 and 34 CFR Part 395.13.
2.	An individual, or, as appropriate, his or her authorized representative, may initiate a formal appeal regarding Business Enterprise Program staff determinations by requesting an impartial due process hearing with an administrative law judge (ALJ). 
3.	The request shall be submitted, in writing, to the Colorado Department of Personnel and Administration, Office of Administrative Courts within ninety (90) calendar days of the decision that affects provision of a Business Enterprise Program service. The written request shall be a statement identifying the basis of the appeal, including a description of the determination made by the Business Enterprise Program staff that the individual is appealing. The statement should include a description of what the individual wants from the appeal.
4.	Hearing Timelines
A hearing shall be held within sixty (60) calendar days of the informal pre-hearing conference, unless both parties agree additional time is necessary for good cause. There may be situations when a time extension is necessary to allow either party or the administrative law judge sufficient time to prepare for the hearing following an informal review. Even at those times, all parties must agree to the extension.
5.	Additional Evidence and Witnesses
The individual, or, as appropriate, his or her authorized representative may present additional evidence, information, and witnesses to support the individual’s position during the hearing.
6.	Findings and Decision
The administrative law judge shall render a decision and provide a written report of the findings and the grounds for this decision to the individual, or, as appropriate, his or her authorized representative, and the Business Enterprise Program within thirty (30) calendar days of completion of the hearing.
7.	Federal Arbitration
The State Licensing Agency or the Licensed Blind Operator who wishes to challenge the final decision made by the administrative law judge may submit a request for review of such decision to the Secretary of Education pursuant to and 20 U.S.C. § 107d-2 and 34 CFR Part 395.13. The final decision of the administrative law judge shall be implemented pending the results of the review of the Secretary of Education.  
9.414 CONFIDENTIALITY [Rev. eff. 7/1/08]

The Business Enterprise Program shares business and logistical information as it is operationally required.  As an eligibility program, it is considered common knowledge and is openly shared that participants are legally blind, along with meeting all other eligibility requirements.
The Business Enterprise Program shall develop further policy or process for the effective and consistent management of information.