71-4-501

T.C.A. 71-4-501

71-4-501. Legislative intent - Construction.

It is the intent of the general assembly to grant to blind individuals a priority in the establishment and operation of vending facilities on public property in this state. To that end, this part shall be liberally construed to give the blind individuals who are eligible for such priority the greatest possible opportunities to operate such vending facilities so that they may become self-supporting.

[Acts 1994, ch. 723, § 2.]

71-4-502. Definitions.

As used in this part, unless the context otherwise requires:
(1) "Blind individual" means any person who meets the requirements for services through the business enterprise program for the blind under part 4 of this chapter and who has been trained and licensed by the department to operate a vending facility under the program's requirements;
(2) "Department" means the department of human services or its successor which has been designated under the Randolph-Sheppard Act (20 U.S.C. §§ 107-107f) as the state licensing agency;
(3) "Priority" means the right of the department to establish on any public property a vending facility to be operated by a blind individual. This priority means that when the department has surveyed a public property and determined that such property is suitable for the location of a vending facility, it shall have the right of first refusal and the exclusive right to the operation of any and all vending facilities on any public property which it determines are capable of being operated by a blind individual which it licenses, or by an individual who may be operating the facility as a temporary manager until a licensed blind individual can assume the operation of the vending facility. Except as provided in subdivision (4) and §§ 71-4-504, 71-4-505, and 71-4-506, the priority shall apply to all existing, altered, or new buildings, facilities, or grounds. This priority shall be exercised exclusively by the department in its sole discretion on behalf of legally blind individuals who are qualified and licensed as vending facility managers by the department and who are deemed capable of providing the type of service required by the management of the public property;
(4) "Public property" means all property owned or leased by: the state of Tennessee, any county, municipality, or any other entity which is created by act of the general assembly to perform any public function; provided, that primary and secondary schools, and entities created under title 42, and their operations, are specially excluded from this definition; and provided further, that institutions that are governed by the University of Tennessee system or the state university and community college system and their operations are also specifically excluded from this definition except that the vending facilities presently in operation at such institutions on April 29, 1996, shall continue to operate at their present locations or, if necessary, at a location comparable in terms of potential patronage, with the priority established by this part. Moreover, the existing priority shall extend to any new structures on any of the campuses governed by the University of Tennessee or the state university and community college system and the priority shall also extend to the establishment of at least one (1) vending facility on any new campus which is developed either by the University of Tennessee system or the state university and community college system; and
(5) "Vending facility" means a location or structure or space which may sell foods, beverages, confections, newspapers, periodicals, tobacco products, and other articles and services which are dispensed automatically by a machine or manually by sales personnel or attendants and which may be prepared on or off the premises in accordance with applicable health laws. A "vending facility" may consist, exclusively or in appropriate combination as determined by the department, of automatic vending machines, cafeterias, snack bars, catering services, food concession vehicles, cart services, shelters, counters, and any appropriate equipment necessary for the sale of articles or services described above. A "vending facility" may encompass more than one (1) building on a public property.

[Acts 1994, ch. 723, § 2; 1996, ch. 829, § 1.]

71-4-503. Vending facilities on public property - Priority - Establishment.

(a) Whenever any new buildings or other facilities are to be constructed by the state or on any other public property or when any existing contracts expire or are changed in any way, the department shall be notified and it shall promptly make an investigation and survey of the public property to determine if, in its judgment, the location is suitable for one (1) or more vending facilities. If, in the department's judgment, the location is suitable for a vending facility, the department may exercise its priority to establish such a vending facility.
(b) If the department exercises the priority under this part, it shall have the right to establish such a vending facility, and it shall provide the necessary alterations, plumbing and electrical services, the necessary equipment, merchandise, a licensed or temporary manager, and the appropriate supervision of the manager. The public property management shall cooperate with the department in whatever manner necessary in order for it to carry out the provisions of this part. The space for the vending facilities and utilities shall be provided at no cost; provided, that the cost of telephone service shall not be the responsibility of the public property management. In cafeteria operations, the licensed or temporary manager may be required to pay a percentage of sales to the public property management in accordance with agreements negotiated between the department and the public property management.

[Acts 1994, ch. 723, § 2.]

71-4-504. Vending machines in lieu of on-site manager.

(a) If, after conducting a survey, the department determines that there is not sufficient population to support an on-site manager but the public property management desires vending machine services, the department shall have the right to place vending machines on the property and to make the necessary arrangements to ensure that vending machine services are provided and that the vending machines are properly maintained.
(b) The income generated from the vending machines placed under the provisions of this section shall accrue to the unassigned funds held by the department for its blind vendors.

[Acts 1994, ch. 723, § 2.]

71-4-505. Cafeterias.

(a) The priority established by this part applies to cafeterias, as defined by the department, as limited by this section.
(b) If a new cafeteria is to be constructed on a public property and/or any existing cafeteria contracts on public properties expire, the department shall receive notification pursuant to § 71-4-503 and shall be afforded the opportunity to submit a proposal for the operation of the proposed cafeteria. If the department's proposal, when considered with all other proposals, is found to be competitive in terms of quality of service, pricing of merchandise, and the rate of commission and/or the rental to be paid, then a priority shall be granted to the department and the cafeteria operation shall be awarded to the department. The department's proposal will not be considered competitive if its proposed payment of annual commissions and/or rental fees is not within two percent (2%) of that submitted by an organization which would otherwise be awarded the cafeteria operation. Nothing in this section shall be construed to allow the property management to take any action regarding an existing facility to defeat an already existing priority.
(c) If the department's proposal is rejected and there is disagreement as to whether the department's proposal is competitive, the dispute shall be resolved in accordance with the provisions of § 71-4-507.

[Acts 1994, ch. 723, § 2.]

71-4-506. Effect of part.

Nothing in this part shall supersede any cooperative agreements which are in effect between the department and public property management on July 1, 1994, regarding the current operation of vending facilities on public properties, nor shall anything in this part preclude the department from entering into future agreements which may be less restrictive than the provisions of this part if, in the department's judgment, such agreements are in the best interest of the program.

[Acts 1994, ch. 723, § 2.]

71-4-507. Dispute resolution.

(a) Except as stated in subsection (b), if a dispute arises between the management of public property and the department concerning any matter contained in this part, then either party may file a complaint setting forth the dispute with the secretary of state. Within ten (10) days of the filing of the complaint, the secretary of state shall appoint an administrative law judge from the administrative procedures division of the secretary of state's office who shall set an administrative hearing to be held under the provisions of the Uniform Administrative Procedure Act, compiled in title 4, chapter 5, part 3, within thirty (30) days of the appointment, unless for good cause shown a later time is deemed necessary. Notwithstanding other provisions of the law to the contrary, the secretary of state or the secretary of state's designee has the authority to render a final order following entry of an initial order by the administrative law judge. Such order shall be appealable as provided by § 4-5-322.
(b) The secretary of state shall be without jurisdiction to hear any complaint concerning the qualifications or status of a licensed or temporary manager who is operating under a license or agreement of the department, and shall be without jurisdiction to hear or establish any damage award for or against any person, any officer or employee of the state, or any public property's governing body or its officers or employees.
(c) The case may be heard and decided entirely upon stipulations and briefs of all parties without the presentation of oral or other written evidence, it being the intent of the general assembly to allow for an early resolution to the disputes arising under this part.

[Acts 1994, ch. 723, § 2.]

71-4-508. Administrative review or evidentiary hearing.

(a) The department has exclusive jurisdiction to provide an opportunity for an administrative review or evidentiary hearing to a blind individual under this part who is dissatisfied with any action arising from the operation or administration of the vending facility program.
(b) The aggrieved blind individual licensed by the department shall submit a written request to the director of services for the blind for an administrative review or a full evidentiary hearing pursuant to the rules and regulations promulgated by the department which shall be provided by the department to the blind individual. If the blind individual is dissatisfied with any action taken or decision rendered as a result of such hearing, that individual may file a complaint with the United States secretary of education for an arbitration hearing as provided by federal law and regulations.
(c) Nothing in this part shall be construed as a waiver of the state's sovereign immunity under the Eleventh Amendment of the Constitution of the United States or under the Constitution of Tennessee.

[Acts 1994, ch. 723, § 2.]

71-4-509. Proceeds set aside for blind vendors.

(a) After considering the recommendation from the committee of blind vendors, the department shall set aside or cause to be set aside a percentage of the net proceeds of the vending facilities in a reasonable amount not to exceed fifteen percent (15%) of their net income and pursuant to a schedule approved by the United States secretary of education. Such funds shall be expended on behalf of blind vendors only for purposes specified by regulations promulgated in accordance with the Randolph-Sheppard Act, 20 U.S.C. §§ 107-107f.
(b) All funds set aside pursuant to subsection (a) and funds in the account for unassigned funds established for the blind vendors program, and all other revenue, except funds appropriated by the state or matching federal funds, shall be invested by the state treasurer pursuant to § 9-4-603, for the benefit of those funds.

[Acts 1994, ch. 723, § 2.]

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PART 6
VOCATIONAL REHABILITATION OF THE BLIND

71-4-601. Short title.

This part may be cited as the "Vocational Rehabilitation of the Blind Law."

[Acts 1955, ch. 243, § 1; T.C.A., §§ 14-625, 14-14-401.]

71-4-602. Definitions.

As used in this part, unless the context otherwise requires:
(1) "Blind handicapped individual" means an individual who is blind, and whose blindness constitutes a substantial handicap to employment, but which is of such a nature that appropriate vocational rehabilitation services may reasonably be expected to:
(A) Render the person able to engage in a remunerative occupation; or
(B) Enable the person to wholly or substantially achieve such ability of independent living as to dispense with the need of institutional care or to dispense or largely dispense with the need of an attendant at home;
(2) "Blind individual" means any person whose visual acuity with maximum correction does not exceed 20/200 in the better eye, except that in those instances in which the visual acuity exceeds 20/200 but is accompanied by a limitation in the fields of vision such that the widest diameter of the visual field subtends an angle no greater than 20 degrees (20ø), visual acuity is not a factor limiting eligibility. Those clients with serious eye disabilities not covered by the foregoing definitions will be accepted for services when referred to the division by the division of vocational rehabilitation, in the department of education; provided, that such referrals are supported by appropriate justification, and that the client is otherwise eligible. Likewise, when it is determined through careful evaluation of all factors that a client who is eligible under the foregoing definitions for services of the division can more adequately be served by the division of vocational rehabilitation, such client will be referred to that agency for services and will be accepted; provided, that the referral is justified by supporting evidence and the client is otherwise eligible for the services of that agency;
(3) "Commissioner" means the commissioner of human services;
(4) "Department" means the department of human services;
(5) "Director" means the director of the division of services for the blind;
(6) "Division" means the division of services for the blind in the department of human services;
(7) "Eligible blind handicapped individual," when used with respect to diagnostic and related services, training guidance and placement, means any blind handicapped person who is a blind citizen of this state, whose vocational rehabilitation is determined feasible by the division of vocational rehabilitation, and when used with respect to other vocational rehabilitation services, means an individual meeting the above requirements who is also found by the division to require financial assistance with respect thereto, after full consideration of the person's eligibility for any similar benefit by the way of pension, compensation and insurance;
(8) "Establishment of a workshop or rehabilitation facility" means:
(A) In the case of a workshop, the construction of a new building or the expansion, remodeling, or alteration of existing buildings, necessary to adapt such buildings to workshop purposes or to increase the employment opportunities in workshops, and the acquisition of initial equipment necessary for new workshops or to increase the employment opportunities in workshops; and
(B) In the case of a rehabilitation facility, the construction of a new building or the expansion, remodeling, or alteration of existing buildings, and initial equipment of such buildings, necessary to adapt such buildings to rehabilitation facility purposes or to increase their effectiveness for such purposes and initial staffing;
(9) "Maintenance" means the provision of money to cover a blind handicapped individual's necessary living expenses and health and maintenance essential to achieving the individual's vocational rehabilitation;
(10) "Nonprofit," when used with respect to a rehabilitation facility or a workshop, means a rehabilitation facility and a workshop, respectively, owned and operated by a corporation or association, no part of the net earnings of which inures, or may lawfully inure, to the benefit of any private shareholder or individual and the income of which is exempt from taxation under § 101(6) of the Internal Revenue Code;
(11) "Physical restoration" includes:
(A) Corrective surgery or therapeutic treatment necessary to correct or substantially modify a physical or mental condition which is stable or slowly progressive and which constitutes a substantial handicap to employment, or which necessitates institutional care or attendant care, but which is of such a nature that such correction or modification may reasonably be expected to eliminate or substantially reduce such handicap within a reasonable length of time, and includes psychiatric treatment, dentistry, physical therapy, occupational therapy, speech or hearing therapy, treatment of medical complications and emergencies which are associated with or arise out of physical restoration services or are inherent in the conditions under treatment, and other medical services related to rehabilitation;
(B) Necessary hospitalization (either in-patient or out-patient), nursing or rest home care, in connection with surgery or treatment specified in subdivision (11)(A);
(C) Prosthetic devices essential to obtaining or retaining employment, or to achieving such ability of independent living as to dispense with the need for expensive institutional care or dispense with or largely dispense with the need of an attendant at home;
(12) "Prosthetic appliance" means any appliance designed to support or take the place of a part of the body, or to increase the acuity of a sensory organ;
(13) "Rehabilitation facility" means a facility operated for the primary purpose of assisting in the rehabilitation of physically handicapped individuals;
(A) Which provides one (1) or more of the following types of services:

(i) Testing, fitting, or training in the use of prosthetic devices;
(ii) Prevocational or conditioning therapy;
(iii) Physical or occupational therapy;
(iv) Adjustment training; or
(v) Evaluation or control of special disabilities; or
(B) Through which is provided an integrated program of medical, psychological, social, and vocational evaluation and services under competent professional supervision;
(14) "Remunerative occupation" includes employment as an employee or self-employed, practice of a profession, homemaking or farm and family work for which payment is in kind rather than cash, sheltered employment, and home industry or other homebound work of a remunerative nature;
(15) "Vocational rehabilitation" means making an individual able, or increasing an individual's ability to:
(A) Engage in a remunerative occupation; or
(B) Dispense with or largely dispense with the need of an attendant at home or expensive institutional care, through providing the individual needed vocational rehabilitation services;
(16) "Vocational rehabilitation services" means:
(A) Diagnostic and related services (including transportation) incidental to the determination of whether an individual is a blind handicapped individual, and if so, the individual's eligibility for, and the nature and scope of other vocational rehabilitation services to be provided; and
(B) The following services provided eligible blind handicapped individuals needing such services:
(i) Training;
(ii) Guidance;
(iii) Placement;
(iv) Maintenance, not exceeding the estimated costs of subsistence during vocational rehabilitation;
(v) Occupational licenses, tools, equipment, initial stocks (including livestock) and supplies (including equipment and initial stocks and supplies for vending stands), books, and training materials to any or all of which the state may retain title;
(vi) Transportation (other than provided as diagnostic and related services); and
(vii) Physical restoration; and
(17) "Workshop" means a place where any manufacture or handiwork is carried on and which is operated for the primary purpose of providing remunerative employment to severely handicapped individuals who cannot be readily absorbed in the competitive labor market.

[Acts 1955, ch. 243, § 3; 1957, ch. 79, § 1; 1959, ch. 174, § 1; impl. am. Acts 1975, ch. 219, §§ 1 (a, b), 2 (a, b); Acts 1977, ch. 19, § 1; T.C.A., §§ 14-626, 14-14-402.]

71-4-603. Declaration of policy - Plan.

(a) It is hereby declared to be the policy of this state to provide rehabilitation services, to the extent needed and feasible, to eligible blind handicapped individuals throughout the state to the end that they may engage in useful and remunerative occupations to the extent of their capabilities, thereby increasing their social and economic well-being and that of their families, and the productive capacity of this state and of the nation, and also thereby reducing the burden of dependency on families and taxpayers.
(b) Pursuant to such policy, the vocational rehabilitation services shall be provided under this part to blind citizens throughout the state, and the vocational rehabilitation plan adopted pursuant to this part shall be in effect in all political subdivisions of the state.

[Acts 1955, ch. 243, § 2; T.C.A., §§ 14-627, 14-14-403.]

71-4-604. Creation of division of vocational rehabilitation of the blind - Director - Appointment - Regulations and state plan.

(a) (1) The division of vocational rehabilitation of the blind, hereinafter called the division, and the office of director of rehabilitation of the blind, the incumbent of which is hereinafter called the "director," are hereby established in the department of human services.
(2) The director shall be appointed, in accordance with established personnel standards, on the basis of training, experience and demonstrated ability in the field of vocational rehabilitation, or related fields, with the approval of the commissioner, and shall be the head of the division.
(b) Except as may be otherwise provided with respect to the blind, the division shall be the sole state agency to supervise and administer vocational rehabilitation services authorized by this part, under the state plan formulated and administered pursuant to this part, except such part or parts thereof as may be administered in a political subdivision or subdivision of this state by a sole local agency of the subdivision, and the division shall be the sole agency to supervise such local agency or agencies in the administration of such part or parts.
(c) The director shall prepare, conformable to the provisions of this part, the proposed regulations and a proposed state plan of vocational rehabilitation, and from time to time prepare such proposed changes as shall appear to be necessary or desirable. Upon approval thereof by the commissioner, such approved proposals shall constitute the state plan and state regulations.

[Acts 1955, ch. 243, § 4; 1972, ch. 506, § 4; impl. am. Acts 1975, ch. 219, § 1 (a, b); T.C.A., §§ 14-628, 14-14-404.]

71-4-605. Types of services - Workshops - Federal funds - Gifts.

(a) All rehabilitation services, as defined in this part, may be provided under this part to eligible blind handicapped individuals, and in any event, such services shall include training, maintenance, placement, guidance and physical restoration services.
(b) Within such limits and under such conditions as may be specified in appropriations therefor, the department may establish rehabilitation facilities and workshops for the blind.
(c) (1) Appropriations, federal grants and donations for vocational rehabilitation services for the blind unless otherwise restricted shall be available for all vocational rehabilitation services for the blind provided under the state plan for the blind, and for the acquisition of vending stands or other equipment and initial stocks (including livestock) and supplies for use by blind individuals in any type of small business, the operation of which will be improved through management and supervision by the division.
(2) State appropriations and donations for vocational rehabilitation of the blind shall likewise be available for the purpose, whenever federal funds are made available to the state under § 3 of the federal vocational rehabilitation of the blind amendments of 1954, for initiating projects for the extension and improvement of vocational rehabilitation services for the blind, or under § 4 of such act for projects for research, demonstrations, training and traineeships, and for planning for an initiating expansion of vocational rehabilitation services for the blind under the state plan for the blind.
(3) The general assembly shall appropriate for vocational rehabilitation of the blind such sums as are necessary, along with available federal and other funds, to carry out the purposes of this part. The acceptance of such federal and other funds, and their use for vocational rehabilitation of the blind, subject to such restrictions as may be imposed by the donor and are not inconsistent with this part, is hereby authorized.
(d) The state treasurer is hereby designated as the custodian of all funds received from the federal government for the purpose of carrying out any federal statutes pertaining to the vocational rehabilitation of the blind.

(e) The director is hereby authorized and empowered with the approval of the commissioner to accept and use gifts made unconditionally by will or otherwise for carrying out the purposes of this part. Gifts made under such conditions, as in the judgment of the commissioner are proper and consistent with the provisions of this part, may be so accepted and shall be held, invested, reinvested, and used in accordance with the conditions of the gift.

[Acts 1955, ch. 243, § 5; impl. am. Acts 1975, ch. 219, § 1 (a, b); T.C.A., §§ 14-629, 14-14-405.]

71-4-606. Federal employees included.

Rehabilitation services provided under the state plan for the blind shall be available to any blind civil employee of the United States disabled while in the performance of the blind civil employee's duty, on the same terms and conditions as apply to other persons.

[Acts 1955, ch. 243, § 6; T.C.A., §§ 14-630, 14-14-406.]

71-4-607. Administration - Personnel - Rules and regulations.

(a) The department is hereby authorized to adopt and promulgate regulations with respect to methods of administration, use of medical and other records of individuals who have been provided vocational rehabilitation services for the blind, and the establishment and maintenance of personnel standards, including provisions relating to the tenure, appointment and qualification of personnel, which shall govern with respect to such matters notwithstanding any other law; provided, that such activities must conform with any applicable rules and regulations of the department of personnel.
(b) The department of human services is also authorized and directed to adopt and promulgate regulations respecting:
(1) The establishment and maintenance of minimum standards governing the facilities and personnel utilized in the provision of vocational rehabilitation services for the blind; and
(2) The order to be followed in selecting those to whom vocational rehabilitation services are to be provided in situations where such services cannot be provided all eligible blind people.

[Acts 1955, ch. 243, § 7; impl. am. Acts 1959, ch. 9, § 4; impl. am. Acts 1961, ch. 97, § 4; impl. am. Acts 1975, ch. 219, § 1 (a, b); T.C.A., §§ 14-631, 14-14-407.]

71-4-608. Cooperation and utilization of other agencies.

Pursuant to the general policies of the department, the director and the division are authorized to:
(1) Cooperate with and utilize the services of the state agency or agencies administering the state's public assistance program, the federal bureau of old-age and survivors insurance (United States department of health and human services), and other federal, state and local public agencies providing services relating to vocational rehabilitation, and with the state system of public employment offices in the state, and shall make maximum feasible utilization of the job placement and employment counseling services and other services and facilities of such offices;
(2) Cooperate with political subdivisions, other public and non-profit organizations and agencies, in their establishment of workshops and rehabilitation facilities, and, to the extent feasible in providing vocational rehabilitation services, shall utilize all such facilities meeting the standards established by the department;
(3) Enter into contractual arrangements with the federal bureau of old-age and survivors insurance (United States department of health and human services) with respect to certifications of disability and performance of other services, and with other authorized public agencies for performance of services related to vocational rehabilitation, for such agencies;
(4) Contract with schools, hospitals, and other agencies, and with doctors, nurses, technicians and other persons, for training, physical restoration, transportation, and other vocational rehabilitation services; and
(5) Contract with a non-profit organization or organizations for the management and operation of workshops for the blind located at Nashville and Memphis and, in fulfillment of the terms of such contract or contracts, lease the present workshop facilities to the organization or organizations for the period of time as specified in the contract; provided, that any contract entered into for this purpose shall not be effective until approved by the governor, attorney general and reporter, and comptroller of the treasury. Such contract shall also be governed by the provisions of § 12-4-109 and the regulations promulgated pursuant thereto. A contractor that manages and operates a workshop under this subdivision shall not be bound by enactments of the general assembly that govern:
(A) The administration of personnel, including title 8, chapter 30;
(B) The purchase of goods and services, including title 12, chapter 3 and §§ 12-4-109 and 12-4-110; and
(C) The administration, disposition, and inventory of property and surplus property, including title 12, chapter 2 and § 4-3-1105.
However, a contractor may purchase, inventory, and dispose of goods, property, and surplus property under these laws, with the approval of and under conditions set by the board of standards. The department of general services may, upon request, purchase supplies and equipment for a contractor to manage and operate a facility. The purchases shall be made on the same terms and rules that govern the purchase of supplies and equipment by such department. The contractor shall pay for all such purchases. Any contractor operating a workshop under this subdivision (5) shall pay the minimum wage, unless a certificate of exemption is granted under the federal Fair Labor Standards Act of 1938, as amended, and shall also comply with all other state and federal laws applying to employment in the private sector.

[Acts 1955, ch. 243, § 8; impl. am. Acts 1975, ch. 219, § 1 (a, b); T.C.A., § 14-632; Acts 1982, ch. 863, § 2; T.C.A., § 14-14-408.]

71-4-609. Maintenance not transferable - Exempt from creditors.

The right of a blind individual to maintenance under this part shall not be transferable or assignable at law or in equity, and shall be exempt from the claims of creditors.

[Acts 1955, ch. 243, § 9; T.C.A., §§ 14-633, 14-14-409.]

71-4-610. Hearing on grievances.

Any blind individual applying for or receiving vocational rehabilitation who is aggrieved by any action of the vocational rehabilitation service for the blind shall be entitled in accordance with regulations promulgated by the commissioner to a fair hearing, and the decision so made after such hearing shall be final.

[Acts 1955, ch. 243, § 10; T.C.A., §§ 14-634, 14-14-410.]

71-4-611. Illegal use of lists - Penalty.

(a) It is unlawful, except for purposes directly connected with the administration of the vocational rehabilitation program, and in accordance with regulations, for any person or persons to solicit, disclose, receive, or make use of, or authorize, knowingly permit, participate in, or acquiesce in the use of any list of, or names of, or any information concerning persons applying for or receiving vocational rehabilitation, directly or indirectly derived from the records, papers, files, or communications of the state or subdivisions or agencies thereof, or acquired in the course of the performance of official duties.
(b) A violation of this section is a Class C misdemeanor.

[Acts 1955, ch. 243, § 11; T.C.A., §§ 14-635, 14-14-411; Acts 1989, ch. 591, § 113.]

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PART 7
PURCHASE OF GOODS AND SERVICES FROM DISABLED PERSONS

71-4-701. Purpose - Applicability.

(a) The purpose of this part is to further the policy of the state to encourage and assist individuals who are blind or have other severe disabilities to achieve maximum personal independence through useful, productive and gainful employment by assuring an expanded and constant market for their commodities and services, thereby enhancing their dignity and capacity for self-support and minimizing their dependence on welfare and need for costly institutionalization.
(b) This part covers any political subdivision of the state having its own purchasing agency and includes governmental divisions of the state, counties, municipalities, school districts or any other public bodies supported in whole or in part by the general assembly. The provisions of this part and participation under this program are optional for approved, nonprofit workshops for the blind in Tennessee and such workshops may proceed under part 2 of this chapter or under this part when seeking the purchase of their commodities and services. Participation under either program does not preclude approved, nonprofit workshops for the blind in Tennessee from participating in an alternative program at any time.

[Acts 1991, ch. 499, § 1; 1996, ch. 827, § 1.]

71-4-702. Definitions.

As used in this part, unless the context otherwise requires:
(1) "Blind" means an individual or class of individuals whose central visual acuity does not exceed 20/200 in the better eye with correcting lenses or whose visual acuity, if better than 20/200, is accompanied by a limit to the field of vision in the better eye to such a degree that its widest diameter subtends an angle no greater than twenty degrees (20ø);
(2) "Central nonprofit agency" means the agency designated by the committee to facilitate the distribution, by direct allocation, subcontract or any other means, of orders from state government for commodities and services on the procurement list among work centers for the blind and agencies serving individuals with severe disabilities, and to assist the committee in administering the program described under this part;
(3) "Certified commodities or services" means:
(A) The commodities produced with "value added" through manufacturing, repackaging or assembly processes by any work center for the blind or by any agency serving individuals with severe disabilities;
(B) The services provided with "value added" by any work center for the blind or by any agency serving individuals with severe disabilities; and
(C) Which have been recommended by the central nonprofit agency as suitable for procurement by any entity of state government pursuant to this part and which are certified by the state board of standards as to quality, availability and fair market price;
(4) "Committee" means the advisory committee for purchase from the blind and other severely disabled, created by § 71-4-703;
(5) "Qualified nonprofit work center for the blind" (hereinafter "work center for the blind") means an agency:
(A) Organized under the laws of the state, operated in the interest of blind individuals, and the net income of which does not inure in whole or in part to the benefit of any shareholder or other individual;
(B) Which complies with the applicable occupational health and safety standards prescribed by the secretary of labor of the United States;
(C) Which, in the production of commodities and the provision of services, whether or not the commodities or services are procured as provided in this part, during the fiscal year employs blind individuals for a minimum of seventy-five percent (75%), or in accordance with the percentage of direct labor required under the terms and conditions of P.L. 92-28, or whichever is lesser, of the man-hours of direct labor required for the production or provision of commodities or services; and
(D) Which meets the criteria for determining nonprofit status under the provisions of title 48, chapter 51, part 1, and is registered in good standing with the office of the secretary of state;
(6) "Qualified nonprofit agency serving individuals with severe disabilities" (hereinafter "agency serving individuals with severe disabilities") means an agency:
(A) Organized under the laws of the United States or of this state, operated in the interest of severely disabled individuals who are not blind, and the net income of which does not inure in whole or in part to the benefit of any shareholder or other individual;
(B) Which complies with any applicable occupational health and safety standard prescribed by the secretary of labor of the United States;
(C) Which, in the production of commodities and in the provision of services, whether or not the commodities or services are procured under §§ 71-4-701 - 71-4-704, during the fiscal year employs blind or other severely disabled individuals for a minimum of seventy-five percent (75%), or in accordance with the percentage of direct labor required under the terms and conditions of P.L. 92-28, or whichever is lesser, of the man-hours of direct labor required for the production or provision of the commodities or services; and
(D) Which meets the criteria for determining nonprofit status under the provisions of title 48, chapter 51, part 1, and is registered in good standing with the office of the secretary of state;
(7) "Severely disabled" and "severely disabled individual" means an individual or class of individuals with a physical or mental disability other than blindness, which, according to criteria established by rules approved by the committee for purchase from the blind and other severely disabled, after consultation with appropriate entities of the state and taking into account the views of nongovernmental entities representing the disabled, constitutes a substantial impediment to employment and is of such a nature to prevent the individual with such a disability from currently engaging in regular competitive employment; and
(8) "Work center" or "work centers" means and includes qualified nonprofit work centers for the blind and qualified nonprofit agencies serving individuals with severe disabilities.

[Acts 1991, ch. 499, § 1; 1996, ch. 827, §§ 2-6, 13.]

71-4-703. Advisory committee for purchase from the blind and other severely disabled - Responsibilities - Purchasing requirements for governmental entities - Applicability of part.

(a) There is created the committee for purchase from the blind and other severely disabled, which shall be composed of the following commissioners or their designees: the commissioners of general services, finance and administration, human services, and mental health and mental retardation. Additionally, there shall be three (3) members appointed by the governor for three-year terms who are private citizens. One (1) of these members shall represent nonprofit work centers for the blind, and one (1) shall represent nonprofit agencies serving individuals with severe disabilities. One (1) member shall represent the business community. The members of the committee shall organize and appoint a chair and determine their operating procedures. Members will serve without compensation, but shall be reimbursed for all necessary expenses incurred in the performance of their duties.
(b) The committee shall provide oversight to the central nonprofit agency in developing and implementing a state procurement program of selected commodities and services from qualified work centers serving blind individuals and agencies serving individuals with severe disabilities; shall have authority to select a central nonprofit agency to implement the procurement program; and shall recommend fair market price for commodities and services submitted to the board of standards for certification.
(c) It is the committee's responsibility to:
(1) Designate a central nonprofit agency to facilitate the distribution, among the work centers for the blind and agencies serving individuals with severe disabilities, of orders of the government for commodities or services appearing on the procurement list (by direct allocation, subcontract or any other means);
(2) Review those rules and regulations that will be proposed by the central nonprofit agency and to promulgate such rules that will effectively implement this part;
(3) Conduct an annual evaluation of the activities of the central nonprofit agency under this part for the purpose of assuring effective and efficient administration of this part; and
(4) Evaluate pricing proposed by the central nonprofit agency to determine fair market price, which recovers the cost projected for the work center to produce or provide such commodities or services.
(d) All departments, institutions, agencies, and political subdivisions of this state supported in whole or in part by the general assembly shall purchase all services or commodities required by such departments, institutions, agencies or political subdivisions of this state from qualified nonprofit work centers for the blind or agencies serving individuals with severe disabilities as defined by § 71-4-702; provided, that the articles are certified by the board of standards and are available. This part has precedence over any law requiring state agency procurement of commodities or services, except laws that require purchases from nonprofit organizations operating under §§ 71-4-204 and 71-4-205, laws establishing preference for blind vendors operating under chapter 4, part 5 of this title, and laws requiring purchases under §§ 41-22-118 - 41-22-124.
(e) This part shall not apply in any case in which commodities or services are available from any agency of the state, or where the board of standards determines that the commodities or services do not meet the reasonable requirements of a department, institution, agency, or political subdivision of this state.

[Acts 1991, ch. 499, § 1; 1996, ch. 827, §§ 7-10.]

71-4-704. Central nonprofit agency - Designation - Functions and operations - Fee.

(a) Under the provisions of § 71-4-703, the state, through the committee, may designate a central nonprofit agency to represent the work centers for the blind and agencies serving individuals with severe disabilities.
(b) The functions and operations of the designated central nonprofit agency shall include, but not be limited to, the following:
(1) Submit proposed rules and regulations necessary to implement this part. Such rules are to be submitted to, and approved by, the committee prior to promulgation;
(2) Ensure that the priorities for the production of commodities and services are maintained under this part;
(3) Evaluate the nonprofit qualifications and capabilities of qualified work centers to manufacture commodities or perform services and represent them to the committee under this part. In evaluating products, the central nonprofit agency must assure that participating work centers are contributing a "value added" to commodities or services that are being recommended under this program;
(4) Recommend to the board of standards, with appropriate justification, including recommended prices, suitable commodities or services for procurement from its work centers and as market conditions change, recommend price changes or revisions or the reassignment of commodities and services to and from the certified products list;
(5) Distribute and allocate (by direct allocation, subcontract or any other means) orders from governmental entities to its work centers;
(6) Maintain the necessary records and monitor data on its work centers to ensure compliance in the production of a commodity or performance of a service;
(7) When authorized by the committee, enter into contracts with the state procurement system for the furnishing of commodities or services provided by its work centers;
(8) When distributing and allocating orders for commodities, priority shall be given to participating nonprofit work centers for the blind.
(c) The central nonprofit agency shall charge a fee to participating work centers for facilitating participation by their work centers under this part. This fee shall not exceed rates approved by the committee. The work center may factor this fee as an administrative expense into the product's overall cost.

[Acts 1991, ch. 499, § 1; 1996, ch. 827, §§ 11, 12.]

71-4-705. Cooperation between committee and state agencies - Annual report of committee - Committee rules - Noncompliance by governmental units - Damages.

(a) In furtherance of the purposes of this part and in order to contribute to the economy of state government, it is the intent of the general assembly that there be close cooperation between the committee and any agency of the state from which procurement of commodities or services is required under the provisions of law currently in effect. The central nonprofit agency is authorized to enter into cooperative agreements, contracts or other arrangements as may be determined to be necessary for the effective coordination and efficient realization of the objectives of this part.
(b) The committee shall annually report, on or before December 31, to the governor and to each member of the general assembly concerning the number of work centers participating in the program, the total dollar amount of purchases made from the participating work centers by state agencies, and any other information the committee deems appropriate.
(c) When any state governmental unit is out of compliance with the rules and regulations set forth by the committee under the terms and conditions specified in this part, a work center may seek to recover damages in accordance with the terms and conditions specified in title 9, chapter 8.

[Acts 1991, ch. 499, § 1.]

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PARTS 8-10 - [RESERVED]

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PART 11
AID TO DISABLED PERSONS - GENERAL FINANCIAL ASSISTANCE

71-4-1101. Short title.

This part may be cited as the "Aid to the Disabled Act."

[Acts 1953, ch. 16, § 18 (Williams, § 4765.170); T.C.A. (orig. ed.), §§ 14-401, 14-16-101.]

71-4-1102. Definition of terms.

As used in this part, unless the context otherwise requires:
(1) "Assistance" means money payments made to or in behalf of totally disabled persons in need, and/or medical care including hospitalization, out-patient care and treatment, nursing home care, drugs or any other type of remedial care recognized under state law in behalf of permanently and totally disabled persons in need, but does not include the following subdivisions (A)-(D) unless the federal Social Security Act is amended to include one (1) or more of the following:
(A) Any such payments to or care in behalf of any individual who is an inmate of a public institution (except as a patient in a medical institution) or any individual who is a patient in an institution for tuberculosis or mental diseases;
(B) Any such payments to any individual who has been diagnosed as having tuberculosis or psychosis and is a patient in a medical institution as a result thereof;
(C) Any such care in behalf of any individual, who is a patient in a medical institution as a result of a diagnosis that such person has tuberculosis or psychosis, with respect to any period after the individual has been a patient in such an institution as a result of such diagnosis, for forty-two (42) days; or
(D) Is not an inmate of any private institution except such private institution as has been approved by the department at the time of receiving assistance;
(2) "Department" means the department of human services;
(3) "Permanently and totally disabled" means that the individual has been determined to have a permanent physical or mental impairment, disease or loss which substantially precludes the individual from engaging in useful occupations within the individual's competence, such as holding a job or homemaking. Such determinations shall be made in accordance with standards which shall be established by the department in consultation with an advisory committee, which committee shall include physicians nominated by the state medical society, and after review of the medical findings by a reviewing physician or physicians;
(4) "Recipient" means a person who was receiving aid to the permanently and totally disabled benefits during the month of December, 1973, and is now qualified under the provisions of Public Law 93-66 to continue to receive a state money payment as a supplement to the federally provided supplemental security income benefits; and
(5) "Regional director" means the director of a region, or a designated agent in a county office, under chapter 1, part 1, of this title.

[Acts 1953, ch. 16, § 1 (Williams, § 4765.153); Acts 1957, ch. 117, § 15; 1965, ch. 9, § 1; 1973, ch. 337, § 3; 1974, ch. 628, § 7; impl. am. Acts 1975, ch. 219, § 1 (a, b); T.C.A. (orig. ed), § 14-402; Acts 1986, ch. 905, § 2; T.C.A., § 14-16-102.]

71-4-1103. Eligibility for assistance.

Assistance shall be granted under this part to any permanently and totally disabled person who:
(1) Is eighteen (18) years of age or older;
(2) Is living within this state voluntarily and not for a temporary purpose, that is, with no intention of presently removing from the state; provided, that temporary absence from the state, with subsequent returns to the state or intent to return when the purposes of the absence have been accomplished, shall not, for the purpose of this part, interrupt continuity of residence;
(3) Has not sufficient income or other resources to provide a reasonable subsistence compatible with decency and health, and whose spouse is not able to meet the person's needs as determined by the department's standards;
(4) (A) Is not an inmate of a public institution and:
(i) Is not a patient in an institution for tuberculosis or mental diseases; or
(ii) Is not a patient in a medical institution as a result of a diagnosis of tuberculosis or psychosis;
(B) An inmate of any public institution ineligible under the provisions in subdivision (4)(A) may, however, make application for such assistance, but the assistance, if granted, shall not begin until after such person ceases to be an inmate;
(5) Within five (5) years immediately preceding application or during receipt of assistance, has not in order to evade any provision of this part made an assignment or transfer of property, the proceeds from which at the fair market value (irrespective of the actual consideration received) would under the state standards of need still be available to meet the needs of the individual. Any transfer of property to a husband, wife, son, daughter, son-in-law, daughter-in-law, brother, sister, brother-in-law, sister-in-law, nephew or niece, within the period above mentioned, shall be prima facie evidence that the transfer was made with the intent to evade the provisions of this part;
(6) Is not receiving for the same month old-age assistance, aid to the blind, or aid to dependent children;
(7) Was receiving aid to the permanently and totally disabled benefits during the month of December 1973, and is now qualified under the provisions of Public Law 93-66 to continue to receive a state money payment as a supplement to the federally-provided supplemental security income benefits.

[Acts 1953, ch. 16, § 2 (Williams, § 4765.154); Acts 1955, ch. 30, § 1; 1955, ch. 125, § 1; 1957, ch. 81, § 3; 1957, ch. 116, § 2; 1965, ch. 9, § 2; 1967, ch. 51, §§ 1, 2; 1970, ch. 487, § 1; 1974, ch. 628, § 8; T.C.A. (orig. ed.), § 14-403; Acts 1986, ch. 905, § 2; T.C.A., § 14-16-103.]

71-4-1104. Amount of assistance.

The amount of assistance which any person shall receive in the form of supplementary payments shall be determined by an application of the provisions of § 212(a) of Public Law 93-66, and rules and regulations made by the department establishing standards of need and allowable resources to the recipient's present personal and economic circumstances.

[Acts 1953, ch. 16, § 3 (Williams, § 4765.155); modified; Acts 1957, ch. 22, § 5; 1957, ch. 117, § 16; 1961, ch. 27, § 1; 1965, ch. 9, § 3; 1967, ch. 51, § 3; 1973, ch. 303, § 18; 1974, ch. 628, § 9; T.C.A. (orig. ed.), §§ 14-404, 14-16-104.]

71-4-1105. Duties of department.

The department shall:
(1) Supervise the administration of assistance to the permanently and totally disabled under this part;
(2) Make such rules and regulations and take such action as may be necessary or desirable for carrying out the provisions of this part to the end that equitable treatment shall be afforded to individuals in similar circumstances. All rules and regulations made by the department shall be binding on the counties and shall be complied with by the respective regional directors;
(3) Establish criteria for determining who is permanently and totally disabled within the meaning of § 71-4-1102;
(4) Establish standards for the determination of need of the individual including:
(A) Statewide requirements essential to maintaining a minimum standard of economic security based on studies of current living costs;
(B) Methods and procedures for measuring income and resources against such statewide requirements;
(C) Property reserves which will not preclude eligibility for assistance under this part;
(5) Employ personnel for the administration of this part in conformity with the state Civil Service Law, compiled in title 8, chapter 30, and the rules and regulations of the state civil service commission;
(6) Prescribe the form of and supply to the regional directors such forms as it may deem necessary and desirable;
(7) Cooperate with the commissioner of social security, or any federal officer or agency made successor thereto, in any reasonable manner as may be necessary to qualify for federal aid for assistance to the permanently and totally disabled and in conformity with the provisions of this part, including the making of such reports in such form and containing such information as the commissioner of social security may from time to time require, and comply with such provisions as such commissioner may from time to time find necessary to assure the correctness and verification of such reports; and
(8) Publish an annual report and such interim reports as may be necessary.

[Acts 1953, ch. 16, § 4 (Williams, § 4765.156); modified; Acts 1973, ch. 303, § 19; 1974, ch. 628, § 10; T.C.A. (orig. ed.), § 14-405; Acts 1986, ch. 905, § 2; T.C.A., § 14-16-105.]

71-4-1106. Duties of regional directors.

The regional directors shall administer the provisions of this part in the counties of their regions, subject to the rules and regulations prescribed by the department pursuant to the provisions of this part, and shall report to the department at such times and in such manner as the department may direct.

[Acts 1953, ch. 16, § 5 (Williams, § 4765.157); T.C.A. (orig. ed.), § 14-406; Acts 1986, ch. 905, § 2; T.C.A., § 14-16-106.]

71-4-1107. Appeal to department.

(a) If any award of assistance is modified or cancelled under any provision of this part, the recipient may appeal to the department in the manner and form prescribed by it.

(b) The department shall, upon receipt of such an appeal, give the recipient reasonable notice and opportunity for a hearing.

[Acts 1953, ch. 16, § 9 (Williams, § 4765.161); Acts 1973, ch. 303, § 21; 1974, ch. 628, § 11; T.C.A. (orig. ed.), § 14-411; Acts 1986, ch. 905, § 2; T.C.A., § 14-16-107.]

71-4-1108. Reconsideration of awards.

(a) All assistance grants in the form of money payments made under this part shall be reconsidered by the regional director, or a designated agent, as frequently as may be required by the rules and regulations of the department.
(b) After such further investigation as the regional director, or a designated agent, may deem necessary or the department may require, the amount of assistance in the form of money payments may be changed or assistance may be entirely withdrawn if the recipient's circumstances have altered to warrant such action.
(c) (1) A recipient shall submit to a reexamination as to such recipient's permanent and total disability when required to do so by the regional director, or a designated agent, or the department.
(2) A recipient shall also furnish any information bearing on such recipient's eligibility required by the regional director, or a designated agent, or by the department.

[Acts 1953, ch. 16, § 10 (Williams, § 4765.162); Acts 1957, ch. 117, § 19; 1973, ch. 303, § 23; T.C.A. (orig. ed.), § 14-413; Acts 1986, ch. 905, § 2; T.C.A., § 14-16-108.]

71-4-1109. Notice of change of status by recipient.

(a) If at any time during the continuance of assistance the recipient thereof becomes possessed of any property or income in excess of the amount stated in the application, it shall be the duty of the recipient immediately to notify the county office of the receipt or possession of such property or income.
(b) The regional director, or a designated agent, may, after investigation, either cancel the assistance or alter the amount of the money payments in accordance with the circumstances.
(c) Any assistance paid after the recipient has come into possession of such property or income and in excess of such recipient's need as determined by the department's standards shall be recoverable in a suit by the state as a debt due to the state.

[Acts 1953, ch. 16, § 11 (Williams, § 4765.163); Acts 1957, ch. 117, § 20; 1961, ch. 17, § 1; 1974, ch. 628, § 12; T.C.A. (orig. ed.), §§ 14-414, 14-16-109.]

71-4-1110. Removal of recipient from county.

Any recipient who moves to another county in this state shall be entitled with the approval of the department to receive assistance in the county to which the recipient has moved, and the regional director, or a designated agent, of the county from which the recipient has moved shall transfer all necessary records relating to the recipient to the regional director, or a designated agent, of the county to which the recipient has moved.

[Acts 1953, ch. 16, § 12 (Williams, § 4765.164); T.C.A. (orig. ed.), §§ 14-415, 14-16-110.]

71-4-1111. Amendment of law.

All assistance granted under this part shall be deemed to be granted to be held subject to the provisions of any amending or repealing act that may hereafter be passed, and no recipient shall have any claim for compensation, or otherwise, by reason of such recipient's assistance being affected in any way by any amending or repealing act.

[Acts 1953, ch. 16, § 17 (Williams, § 4765.169); T.C.A. (orig. ed.), § 14-416; Acts 1986, ch. 905, § 2; T.C.A., § 14-16-111.]

71-4-1112. Assignment of benefits - Exemption.

Assistance granted under this part shall not be transferable or assignable, at law or in equity, and none of the money paid or payable under this part shall be subject to execution, levy, attachment, garnishment or other legal process, or to the operation of any bankruptcy or insolvency law.

[Acts 1953, ch. 16, § 8 (Williams, § 4765.160); T.C.A. (orig. ed.), § 14-417; Acts 1986, ch. 905, § 2; T.C.A., § 14-16-112.]

71-4-1113. Fraudulent devices - Penalty.

A person who:
(1) Knowingly obtains, or attempts to obtain, or aids or abets any persons to obtain, by means of a willfully false statement or representation or by impersonation, or other fraudulent device, assistance to which such person is not entitled or assistance greater than that to which such person is justly entitled; or
(2) With intent to defraud, aids or abets in buying or in any way disposing of the property, either personal or real, of a recipient of assistance, without the consent of the department;
commits a Class E felony.

[Acts 1955, ch. 30, § 2; T.C.A., §§ 14-431, 14-16-113; Acts 1989, ch. 591, § 106.]

71-4-1114. Charging disabled to file application - Illegal use of lists - Penalty.

(a) It is unlawful for any person, firm or corporation to directly or indirectly either charge or receive anything of value for assisting any person in making application to the proper authorities of this state, or any of them, for relief or assistance under the provisions of this part.
(b) It is unlawful for any person, except for purposes directly connected with the administration of this part, to solicit, disclose, receive, make use of, authorize or knowingly permit, participate in, or acquiesce in the use of, any list of names of, or any information concerning, persons applying for or receiving aid to the permanently and totally disabled, directly or indirectly derived from the records, papers, files or communications of the department or divisions thereof, or acquired in the course of the performance of official duties, except as provided by §§ 71-1-117 and 71-1-118.

[Acts 1955, ch. 30, § 3; impl. am. Acts 1975, ch. 219, § 1 (a, b); T.C.A., § 14-432; Acts 1986, ch. 905, § 2; T.C.A., § 14-16-114; Acts 1989, ch. 591, § 113.]

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