TITLE 40. SOCIAL SERVICES AND ASSISTANCE

PART 20. TEXAS WORKFORCE COMMISSION

CHAPTER 854. BUSINESS ENTERPRISES OF TEXAS

The Texas Workforce Commission (TWC) adopts amendments to the following sections of Chapter 854, relating to Business Enterprises of Texas:

Subchapter A. General Provisions and Program Operations, §854.10 and §854.11

Subchapter B. License and Assignments, §§854.20 - 854.23

Subchapter C. Expectations of TWC and Managers, §§854.40 - 854.43

Subchapter D. BET Elected Committee of Managers, §854.60

Subchapter E. Action Against a License, §§854.80 - 854.83

TWC adopts the repeal of the following section of Chapter 854, relating to Business Enterprises of Texas:

Subchapter A. General Provisions and Program Operations, §854.12

The amendments to §§854.10, 854.11, 854.20 - 854.23, 854.40 - 854.43, 854.60, and 854.80 - 854.83 and the repeal of §854.12 are adopted without changes to the proposal as published in the April 8, 2022, issue of the Texas Register (47 TexReg 1870), and, therefore, the adopted rule text will not be republished.

PART I. PURPOSE, BACKGROUND, AND AUTHORITY

On May 21, 2019, TWC adopted rules in 40 TAC Chapter 854, relating to the Business Enterprises of Texas (BET).

On May 23, 2019, TWC submitted revised BET Program rules to the Rehabilitation Services Administration (RSA) for approval. The Randolph Sheppard Act (20 United States Code §107) requires rules governing the BET Program first be reviewed and approved by RSA before becoming effective. The federally mandated BET Elected Committee of Managers (ECM) agreed with the revisions and communicated its support to RSA via email on May 24, 2019. The revised program rules included changes requested by the ECM and conforming changes to incorporate the BET rules into TWC administrative rules in 40 TAC Part 20 following transfer of the program to TWC from legacy Texas Department of Assistive and Rehabilitative Services.

The BET Program rules adopted by TWC went into effect on September 1, 2019; however, RSA had not returned approval of the rules by that date.

On April 22, 2020, RSA responded to TWC's May 2019 submission, offering comments, questions, and required changes related to the revised BET Program rules. The required changes included provisions that were not revised by TWC in the 2019 submission and that were previously approved by RSA. The information presented by RSA was supplied to the ECM.

TWC sought clarification from RSA about the specific adjustments required to obtain approval of the revised rules as submitted. Upon gaining a better understanding of the requirements and making adjustments to comply, RSA approved the revised rules on November 16, 2020. The ECM was notified that RSA approved the rules with some required adjustments. The ECM agreed with the RSA adjustments in writing on May 6, 2021.

PART II. EXPLANATION OF INDIVIDUAL PROVISIONS

(Note: Minor editorial changes are made that do not change the meaning of the rules and, therefore, are not discussed in the Explanation of Individual Provisions.)

SUBCHAPTER A. GENERAL PROVISIONS AND PROGRAM OPERATIONS

TWC adopts the following amendments to Subchapter A:

§854.10. Definitions

Section 854.10 is amended to add the definitions for "Agency" and "VRD director."

New §854.10(2) defines "Agency" as TWC, which is the state licensing agency for the Randolph-Sheppard program titled the Business Enterprises of Texas. Subsequent definitions are renumbered accordingly.

New §854.10(28) defines "VRD director" as the director of TWC's designated state unit titled the Vocational Rehabilitation Division.

§854.11. General Policies

Section 854.11(b) is amended to change "citizens of Texas" to "reside or are physically present in Texas" to clarify that legally blind individuals who reside or are physically present in Texas can operate BET facilities.

Section 854.11(c) is amended to clarify that the term "Management" includes "being physically present to perform" the supervision duties.

Section 854.11(h) is amended to add "race" to the nondiscrimination clause and §854.11(i) is amended to include "declared emergencies" in the description of emergencies.

§854.12. Consultants

Section 854.12 is repealed because the section relating to consultants is no longer needed.

SUBCHAPTER B. LICENSE AND ASSIGNMENTS

TWC adopts the following amendments to Subchapter B:

§854.20. Eligibility and Application Process

Section 854.20(a) is amended to clarify prerequisites for training. In §854.20(a)(2) "residing" in Texas is changed to "physically present" in Texas, and in §854.20(a)(5), "health and stamina" is changed to "physical capability."

Section 854.20(b) is amended to include in the application process that notification of the interview results may be provided by mail if the applicant does not have access to email.

§854.21. BET Licenses and Continuing Education Requirement

Section 854.21 is amended to clarify the property right statement. Section 854.21(a)(4) is amended to read that a license shall not create any property right for the licensee to state or federal property including state- or federally-owned equipment.

§854.22. Initial Assignment Procedures

Section 854.22(b)(6), which states "any other circumstances on a case-by-case basis," is removed from the factors that the BET director will consider when determining the manager's initial assignment.

§854.23. Career Advancement Assignment Procedures

Section 854.23(b)(4) is amended to correct a reference. Section 854.81 relates to Administrative Action Based on Unsatisfactory Performance, not §854.41.

SUBCHAPTER C. EXPECTATIONS OF TWC AND MANAGERS

TWC adopts the following amendments to Subchapter C:

§854.40. Fixtures, Furnishings, and Equipment; Initial Inventory; and Expendables

Section 854.40(c) is amended to clarify that TWC's purchase of necessary equipment for placement away from the facility and remove the sentence regarding the manager's responsibilities relating to the off-site equipment.

Section 854.40(f) is amended to add paragraph (3) to state that TWC has the right to perform required maintenance and require the manager to reimburse the Agency for that maintenance.

Section 854.40(g) is amended to remove the language stating that the vendors will be informed by TWC staff of the procedures regarding payment for services.

§854.41. Set-Aside Fees

Section 854.41(a)(4) is amended to replace "Texans" with "individuals physically present in Texas." Section 854.41(b)(5) is amended to clarify that the use of funds for retirement, health insurance, or paid sick and vacation leave will be determined by the majority vote of licensed managers.

§854.42. Duties and Responsibilities of Managers

Section 854.42(d) is amended to state that managers shall dress and act in an appropriate manner and §854.42(o) is amended to state that copies of evidence that needs to be preserved for an audit or review will be supplied to the manager within 90 business days.

§854.43. Responsibilities of the Texas Workforce Commission

Section 854.43(c) is amended to state the ECM will actively participate in the setting of price ranges charged in facilities.

SUBCHAPTER D. BET Elected Committee of Managers

TWC adopts the following amendments to Subchapter D:

§854.60. BET Elected Committee of Managers' Duties and Responsibilities

Section 854.60(c)(2) is amended to replace "Texans" with "individuals physically present in Texas."

SUBCHAPTER E. Action Against a License

TWC adopts the following amendments to Subchapter E:

§854.80. Termination of License for Reasons Other Than Unsatisfactory Performance

Section 854.80(a)(2) is amended to add "with or without reasonable accommodations" to the cause for termination for a licensee who becomes permanently disabled and is unable to perform the essential functions to operate and maintain the facility.

§854.81. Administrative Action Based on Unsatisfactory Performance

Section 854.81(a) is amended to clarify the causes for administrative action based on unsatisfactory performance.

Section 854.81(b) is deleted to remove the administrative action pending an appeal and the subsequent subsections are relettered accordingly.

Relettered §854.81(b)(5)(D) and (c)(2)(A) are amended to include "via mail or electronically via email" for notifications between the manager and TWC.

Relettered §854.81(d) is amended to include the reference to §854.82(e) regarding full evidentiary hearings.

§854.82. Procedures for Resolution of Manager's Dissatisfaction

Section 854.82 is amended to remove subsection (b)(2) and (3) from actions not subject to appeal and the statement of agency sovereign immunity in subsection (c). The subsequent subsections have been relettered accordingly.

Relettered §854.82(d) is amended to clarify the informal procedures in paragraphs (1), (3), and (4), and paragraph (6) is amended to clarify that upon conclusion of mediation, the mediator would share in writing the results of mediation.

Relettered §854.82(e)(3) is amended to clarify the time that a manager needs to request an evidentiary hearing, and paragraph (4) is amended to clarify the request for the hearing must be in writing and transmitted to the VRD director by mail or email.

§854.83. Establishing and Closing Facilities

Section 854.83(a) is amended to remove paragraph (2), which is the description of action required if it is determined that a blind individual cannot properly operate a vending facility.

TWC hereby certifies that the adoption has been reviewed by legal counsel and found to be within TWC's legal authority to adopt.

PART III. PUBLIC COMMENTS

The public comment period closed on May 9, 2022. No comments were received.

SUBCHAPTER A. GENERAL PROVISIONS AND PROGRAM OPERATIONS

40 TAC §854.10, §854.11

STATUTORY AUTHORITY

The rules are adopted under Texas Labor Code, §355.012(a), authorizing TWC to promulgate rules necessary to implement Texas Labor Code, Chapter 355, and under Texas Labor Code, §301.0015(a)(6), which provides TWC with the authority to adopt rules as necessary.

The adopted rules affect Texas Labor Code, particularly Chapter 355.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on June 14, 2022.

TRD-202202245

Les Trobman

General Counsel

Texas Workforce Commission

Effective date: July 4, 2022

Proposal publication date: April 8, 2022

For further information, please call: (512) 689-9855


40 TAC §854.12

The repeal is adopted under Texas Labor Code, §355.012(a), authorizing TWC to promulgate rules necessary to implement Texas Labor Code, Chapter 355, and under Texas Labor Code, §301.0015(a)(6), which provides TWC with the authority to adopt rules as necessary.

The adopted repeal affects Texas Labor Code, particularly Chapter 355.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on June 14, 2022.

TRD-202202246

Les Trobman

General Counsel

Texas Workforce Commission

Effective date: July 4, 2022

Proposal publication date: April 8, 2022

For further information, please call: (512) 689-9855


SUBCHAPTER B. LICENSE AND ASSIGNMENTS

40 TAC §§854.20 - 854.23

The rules are adopted under Texas Labor Code, §355.012(a), authorizing TWC to promulgate rules necessary to implement Texas Labor Code, Chapter 355, and under Texas Labor Code, §301.0015(a)(6), which provides TWC with the authority to adopt rules as necessary.

The adopted rules affect Texas Labor Code, particularly Chapter 355.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on June 14, 2022.

TRD-202202247

Les Trobman

General Counsel

Texas Workforce Commission

Effective date: July 4, 2022

Proposal publication date: April 8, 2022

For further information, please call: (512) 689-9855


SUBCHAPTER C. EXPECTATIONS OF TWC AND MANAGERS

40 TAC §§854.40 - 854.43

The rules are adopted under Texas Labor Code, §355.012(a), authorizing TWC to promulgate rules necessary to implement Texas Labor Code, Chapter 355, and under Texas Labor Code, §301.0015(a)(6), which provides TWC with the authority to adopt rules as necessary.

The adopted rules affect Texas Labor Code, particularly Chapter 355.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on June 14, 2022.

TRD-202202248

Les Trobman

General Counsel

Texas Workforce Commission

Effective date: July 4, 2022

Proposal publication date: April 8, 2022

For further information, please call: (512) 689-9855


SUBCHAPTER D. BET ELECTED COMMITTEE OF MANAGERS

40 TAC §854.60

The rule is adopted under Texas Labor Code, §355.012(a), authorizing TWC to promulgate rules necessary to implement Texas Labor Code, Chapter 355, and under Texas Labor Code, §301.0015(a)(6), which provides TWC with the authority to adopt rules as necessary.

The adopted rule affects Texas Labor Code, particularly Chapter 355.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on June 14, 2022.

TRD-202202249

Les Trobman

General Counsel

Texas Workforce Commission

Effective date: July 4, 2022

Proposal publication date: April 8, 2022

For further information, please call: (512) 689-9855


SUBCHAPTER E. ACTION AGAINST A LICENSE

40 TAC §§854.80 - 854.83

The rules are adopted under Texas Labor Code, §355.012(a), authorizing TWC to promulgate rules necessary to implement Texas Labor Code, Chapter 355, and under Texas Labor Code, §301.0015(a)(6), which provides TWC with the authority to adopt rules as necessary.

The adopted rules affect Texas Labor Code, particularly Chapter 355.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on June 14, 2022.

TRD-202202250

Les Trobman

General Counsel

Texas Workforce Commission

Effective date: July 4, 2022

Proposal publication date: April 8, 2022

For further information, please call: (512) 689-9855