01-15153. Arbitration Panel Decision Under the Randolph-Sheppard Act

AGENCY:

Department of Education.

ACTION:

Notice of Arbitration Panel Decision Under the Randolph-Sheppard Act.

SUMMARY:

Notice is hereby given that on October 20, 2000, an arbitration panel rendered a decision in the matter of Alabama Department of Rehabilitation Services v. Department of Veterans Affairs, Veterans Canteen Service (Docket No. R-S/98-7). This panel was convened by the U.S. Department of Education pursuant to 20 U.S.C. 107d-1(b) upon receipt of a complaint filed by petitioner, the Alabama Department of Rehabilitation Services.

FOR FURTHER INFORMATION:

A copy of the full text of the arbitration panel decision may be obtained from George F. Arsnow, U.S. Department of Education, 400 Maryland Avenue, SW., room 3230, Mary E. Switzer Building, Washington, DC 20202-2738. Telephone: [phone]. If you use a telecommunications device for the deaf (TDD), you may call the TDD number at [phone].

Individuals with disabilities may obtain this document in an alternative format (e.g., Braille, large print, audiotape, or computer diskette) on request to the contact person listed in the preceding paragraph.

Electronic Access To This Document

You may view this document, as well as all other Department of Education documents published in the Federal Register, in text or Adobe Portable Document Format (PDF) on the Internet at the following site: www.ed.gov/​legislation/​FedRegister.

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Note:

The official version of this document is the document published in the Federal Register. Free Internet access to the official edition of the Federal Register and the Code of Federal Regulations is available on GPO Access at: http://www.access.gpo.gov/​nara/​index.html.

SUPPLEMENTARY INFORMATION:

Pursuant to the Randolph-Sheppard Act (20 U.S.C. 107d-2(c)) (the Act), the Secretary publishes in the Federal Register a synopsis of each arbitration panel decision affecting the administration of vending facilities on Federal and other property.

Background

This dispute concerns the alleged violation by the Department of Veterans Affairs (DVA), Veterans Canteen Service (VCS), of the priority provisions of the Act (20 U.S.C. 107 et seq.) and implementing regulations in 34 CFR part 395 at DVA/VCS Medical Centers in Alabama.

A summary of the facts is as follows: In 1995, the Alabama Department of Rehabilitation Services, the State licensing Agency (SLA), submitted permit applications to establish Randolph-Sheppard vending facilities on four Federal properties maintained and operated by DVA and VCS in Alabama. The permits were for the Veterans Administration Medical Center, Tuskegee; the Regional Office and DVA Medical Center, Montgomery; the Veterans Hospital, Birmingham; and the Veterans Administration Hospital, Tuscaloosa.

By letter dated July 11, 1996, DVA acknowledged receipt of the permit applications and informed the SLA that a decision would be made after a review had been conducted to determine whether there were any plans to acquire, occupy, or otherwise engage in any substantial alterations or renovations of the involved buildings. The SLA did not receive any further communication from DVA or VCS until March 4, 1998. On that date, DVA wrote to the SLA advising that the Montgomery and Tuskegee facilities did not plan any construction that would require notice to the SLA and indicating that there was no suitable existing space available for the location of blind vending facilities at those centers. The letter informed the SLA that the hospitals at Birmingham and Tuscaloosa planned substantial alterations and renovations. The DVA forwarded the SLA's applications for permits at these hospitals to the directors of those facilities.

Following receipt of DVA's March 4th letter, representatives of the SLA met with the Directors or their designees of the DVA Medical Centers located in Birmingham and Tuscaloosa. On May 21, 1998, the SLA wrote each Director asking for a response to the applications that had been pending since 1995. The SLA did not receive any response and in June 1998 filed with the Department of Education a request for arbitration of the matter.

In July 1998, the Tuscaloosa Director notified the SLA that DVA/VCS intended to occupy a building that might contain a satisfactory site for the establishment of a vending location for a blind vendor. On July 20, 1998, the SLA responded that it would send a representative to develop a site specific survey. In September 1998, the attorney for the SLA contacted the attorney for DVA and requested a meeting to negotiate a resolution to the issues.

In a letter dated November 9, 1998, the DVA denied the SLA's second application filed in August 1998 to establish vending locations at the Tuscaloosa facility. Based upon information that the average income for its blind vendors was $25,000, the SLA previously had determined that it would take $100,000 in gross sales at the Tuscaloosa facility to provide a net income of $25,000 for a blind vendor. In the letter, the DVA indicated to the SLA that the $100,000 gross sales requirement for a possible vending location at the Tuscaloosa facility would include practically all of the gross sales, and the DVA would not give up the operation.

The SLA notified the Department of Education by letter dated December 8, 1998 that no decision had been issued by DVA on its request to establish vending facilities at the DVA Medical Centers. Therefore, the SLA requested that the arbitration should proceed. A hearing on this matter was held on January 11-12, 2000.

Arbitration Panel Decision

The central issue before the arbitration panel was whether DVA/VCS's determination that no existing suitable space was available for blind vending facilities at DVA's Montgomery and Tuskegee locations and the failure of DVA's Medical Directors at the Birmingham and Tuscaloosa locations to approve the permit applications for blind vending facilities were contrary to and in violation of the Randolph-Sheppard Act, 20 U.S.C. 107 et seq., and the implementing regulations in 34 CFR part 395.

The arbitration panel found that DVA/VCS did not comply with the Act in processing the SLA's 1995 permit 1 applications. Nor did DVA/VCS give reasons for its denial of permits at the Montgomery and Tuskegee Medical Centers as required by the Act and regulations in 34 CFR 395.16.

The panel also concluded that, at the Tuscaloosa and Birmingham locations, DVA/VCS did not provide the SLA with timely notice of the substantial renovations at these sites as required by the Act and implementing regulations in 34 CFR 395.31(c). Furthermore, during the renovations at the Birmingham and Tuscaloosa Medical Centers, DVA/VCS failed to provide the SLA with access to the facilities, personnel numbers, or financial data pertaining to the vending operations, as required by the Act, to determine if a suitable site existed.

Therefore, for the previously stated reasons, the arbitration panel ruled that DVA/VCS had violated the Randolph-Sheppard Act. However, the panel stated that it did not have the authority to prescribe remedies. It noted that DVA/VCS' current position is that it is presently in compliance with the Randolph-Sheppard Act.

The views and opinions expressed by the panel do not necessarily represent the views and opinions of the U.S. Department of Education.

Dated: June 12, 2001.

Francis V. Corrigan,

Deputy Director, National Institute on Disability and Rehabilitation Research.