[Federal Register: October 17, 1995 (Volume 60, Number 200)]
[Notices]
[Page 53767-53768]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
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DEPARTMENT OF EDUCATION
Arbitration Panel Decision Under the Randolph-Sheppard Act
AGENCY: Department of Education.
ACTION: Notice of arbitration panel decision under the Randolph-
Sheppard Act.
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SUMMARY: Notice is hereby given that on August 6, 1994, an arbitration
panel rendered a decision in the matter of Lue Atha Dixie v. Tennessee
Department of Human Services (Docket No. R-S/92-10). This panel was
convened by the Secretary of the U.S. Department of Education pursuant
to 20 U.S.C. 107d-2 upon receipt of a complaint by petitioner Lue Atha
Dixie.
FOR FURTHER INFORMATION CONTACT: A copy of the full text of the
arbitration panel decision may be obtained from George F. Arsnow, U.S.
Department of Education, 600 Independence Avenue, S.W., Room 3230,
Switzer Building, Washington, D.C. 20202-2738. Telephone: (202) 205-
9317. Individuals who use a telecommunications device for the deaf
(TDD) may call the TDD number at (202) 205-8298.
SUPPLEMENTARY INFORMATION: Pursuant to the Randolph-Sheppard Act (20
U.S.C. 107d-2(c)), the Secretary publishes a synopsis of arbitration
panel decisions affecting the administration of vending facilities on
Federal and other property.
Background
Ms. Lue Atha Dixie began her career as a vending facility manager
in the Tennessee Business Enterprise Program in 1980. The program is
operated by the Tennessee Department of Human Services (TDHS), the
State licensing agency (SLA), in conformance with the requirements of
the Randolph-Sheppard Act (the Act), 20 U.S.C 107 et seq., and
implementing regulations in 34 CFR Part 395.
Ms. Dixie was removed from the Business Enterprise Program on
October 31, 1990, when her license as a facility manager was revoked on
the grounds that her visual acuity exceeded the standard established by
the Act. However, pending the outcome of the Federal arbitration
hearing, Ms. Dixie continued to manage the facility pursuant to an
arrangement with the SLA.
The question of visual acuity was raised when she underwent a
periodic eye examination that was required of all managers in the TDHS
program following a 1989 amendment to the Tennessee State Rules, 1240-
6-2.03. Prior to this amendment, there had been no requirement of
periodic examinations of vending facility managers. In the course of
the eye examination conducted after the passage of the new rule, Ms.
Dixie's level of visual acuity disqualified her from the program based
on the visual acuity standard found in the regulations in 34 CFR
395.1(c).
Consequently, in compliance with revised State Rule 1240-6-2.03,
which provided for the revocation of the license of any manager whose
vision did not qualify him or her under the regulations in 34 CFR
395.1(c), Ms. Dixie's license was terminated. The ophthalmologist who
conducted the initial examination of Ms. Dixie's eyes concluded that
her vision did not fall within the eligibility guidelines.
Subsequently, at Ms. Dixie's request, she was examined by another
ophthalmologist, whose examination largely confirmed the previous
doctor's assessment.
In March 1991, after her license was terminated, Ms. Dixie was
examined by a third ophthalmologist. Using specialized contrast
sensitivity acuity testing procedures, which measure acuity over a
broader range of light and color than traditional methods, the doctor's
report was favorable to Ms. Dixie.
However, during the time the foregoing examinations were taking
place, the SLA discovered in its records two eye examinations of Ms.
Dixie in 1978 and 1980 indicating that her visual acuity did not meet
the eligibility requirements of the Randolph-Sheppard program.
Following her October 1990 license termination, Ms. Dixie requested
and received a State fair hearing, which was conducted on March 15,
1991. On July 2, 1991 a hearing officer upheld the SLA's decision
terminating Ms. Dixie's license, and on July 15, 1991 the SLA adopted
the hearing officer's decision as final agency action.
Subsequently, Ms. Dixie filed a request with the Secretary of the
U.S. Department of Education to convene an arbitration panel to hear
this dispute. A panel was convened, and this complaint was heard on
February 21, 1994.
Arbitration Panel Decision
The arbitration panel concluded that Ms. Dixie's functional visual
acuity satisfied the applicable regulations in 34 CFR 395.1(c) and that
she was improperly removed from the Tennessee Business Enterprise
Program. The panel reasoned that, if the report of the contrast acuity
examination had been available to the SLA prior to Ms. Dixie's removal
from the vending facility program, her removal might well have been
avoided.
The panel concluded that the contrast sensitivity testing for
visual acuity is probably the most comprehensive way to measure
functional vision. The panel further stated that while the definition
of blindness contained in 34 CFR 395.1(c) uses the Snelling Acuity
Chart
[[Page 53768]]
for its basis, the panel did not consider that this precluded use of
the newer method of contrast sensitivity testing to measure visual
acuity.
Consequently, the panel directed that Ms. Dixie be restored to her
prior position with appropriate credit given to her retirement plan.
The panel also concluded that no additional remedy was required, since
Ms. Dixie, in agreement with the SLA, had continued to operate her
facility pending the outcome of the arbitration proceedings.
The views and opinions expressed by the panel do not necessarily
represent the views and opinions of the United States Department of
Education.
Dated: October 11, 1995.
Howard Moses,
Acting Assistant Secretary for Special Education and Rehabilitative
Services.
[FR Doc. 95-25617 Filed 10-16-95; 8:45 am]
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