[Federal Register Volume 60, Number 200 (Tuesday, October 17, 1995)]
[Notices]
[Pages 53767-53768]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-25617]



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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October 31, 1990, when her license as a facility manager was revoked on 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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