I think there are other things which factor into why the program and why blind vendors have difficulties. I manage a cafeteria at the National Institutes of Health. We have seven full-time employees and two part-time employees. The customer count through my cafeteria ranges between 6,000 and 7,000 people per week, depending upon the number of conferences that are held in the auditori

um.

The facility was established 11 years ago, but since that time, there has been little or no building maintenance of the facility. Consequently, the areas in the walkways within the customer service area and within the service area of the cafeteria of my own employees and within the dining room are in much need of repair.

There is a great deal of painting that needs to be taken care of, and these conditions reflect badly upon the agency itself. It also reflects poorly upon the Randolph-Sheppard program, because to the average person who comes in and uses the facility it seems I don't draw any distinctions between what is the responsibility of the program and what is the responsibility of the building management. And this situation occurs many other places throughout the country.

I would hasten to add, however, that in general, the National Institutes of Health has been most supportive and most cooperative with the Maryland Vending Program for the Blind. And in my own particular case, happily this week, serious efforts are being made to take care of the building management problems.

While that does not alleviate the expansion that needs to be made there, at least it will spruce up the facility so that the appearance is in a much better condition.

I also want to at this time indicate that the Randolph-Sheppard Vendors of America is in support of the request that was mentioned by Durward McDaniel for the appropriations for the vending facility program. I think in the years ahead, it will be very important that we receive some form of financial support to the program, at least to expand it, to renovate it.

And I think that one thing that needs to be remembered is a facility, when it is established-and at one time I think the estimated cost was $43,000—that that facility may serve in its lifetime a number of blind persons. It is not just an investment in one person, but it is an investment in a number of persons.

We also support and request that serious consideration be given to the filling of those positions so that RSA can serve as the leader for the program and serve as an example to the State licensing agencies.

It is very important that we recognize the need of employment for blind persons and to follow through with making the law work. We do not believe that it is necessary to write new legislation. We believe that through compliance and causing people to adhere to what currently exists, the program can flourish, that the vision of Congress and of Senator Randolph can be met.

Again, I want to thank you for the opportunity to be here on behalf of the blind vendors of the United States.

[The prepared statement of George Abbott follows:]

STATEMENT OF GEORGE ABBOTT

Mr. Chairman and members of the subcommittee, my name is George Abbott. I am married and have four children and reside in Derwood, Maryland. I have been in the Randolph-Sheppard program since 1961. My current facility is a cafeteria located at the National Institutes of Health in Bethesda, Maryland. I have served on the Board of Directors of the Randolph-Sheppard Vendors of America (an organization of blind vendors which is an affiliate of the American Council of the Blind) since 1974 and was active in promoting the passage of the 1974 amendments to the Randolph-Sheppard Act. I served as president of the Randolph-Sheppard Vendors of America from 1986-1988. In the mid 1970's I helped organize a chapter of the Randolph-Sheppard Vendors of America in Maryland. When Maryland organized its committee of blind vendors as provided for in the act, I served as its first chairman from 1976-1986 and I am the current vice-chairman.

Since the passage of the 1974 amendments to the act in which Congress envisioned that the potential exists to double the vending program, it has actually declined. There are fewer vendors today than there were in 1974. In my own State there were at one time 104 vendors. Today there are 83. Why has the vision of Congress and the hopes of blind persons dimmed so dramatically? In my opinion, there are a number of reasons.

The 1974 amendments called for ten new positions in the Rehabilitation Services Administration for the Randolph-Sheppard program. They have never been filled. As a consequence RSA has not been able to provide the kind of leadership and advocacy at the national level that the program requires. RSA has never been able to conduct a national survey for new sites as provided for under the act.

The regulations as promulgated by RSA are flawed, thus hampering the growth of the program. For instance under the regulations cafeterias must be issued by contract rather than by permit, as set forth under the Randolph-Sheppard Act.

The 1974 amendments provided for the authorization of funds for the program. Funds have never been appropriated. The lack of Federal financial support has meant an inability on the part of State licensing agencies to develop new facilities to increase employment of blind vendors. Some State agencies such as Maryland rely heavily on unassigned vending machine revenue and set-aside funds to provide the funding for the program. Approximately 7 percent of our budget for fiscal year 1992 is Federal money. This leads to an inability to capitalize new facilities and to provide the necessary renovations on older ones.

Many of the barriers that restrained the Randolph-Sheppard program in the 1970's still exist today. At one time GSA tried to require that in order for a State licensing agency to bid on a cafeteria, they had to demonstrate that they were capable of operating facilities in 10 States. The Defense Department has established fast food facilities on some of their properties and did not provide opportunities for the State licensing agencies to bid on these locations. The Department of Veterans Affairs maintains that the Randolph-Sheppard Act priority does not apply to them, while an arbitration panel found that a blind vendor in a DVA facility should pay a "commission" for the right to operate the vending facility.

At the Corpus Christi Naval Air Station in Texas a cafeteria was removed from the Randolph-Sheppard program of Texas and was awarded to an employee organization. There are other instances in which employee recreation and welfare associations are permitted to operate in direct competition with blind vendors. This leads to fewer blind vendors in the program and negatively impacts on the income to blind vendors. This direct competition also violates the spirit and intent of the Randolph-Sheppard Act which grants a preference to the establishment of vending facilities to be operated by blind vendors.

These conditions exist at the National Institutes of Health and within the District of Columbia. Recently, when a number of cafeteria contracts were up for renewal at the NIH, the Maryland vending program had to wave their right to bid because the contracts stipulated that the successful bidder must renovate these facilities. The estimated cost for the renovations was $7 million.

I manage a cafeteria at the NIH. This facility was built in 1980. We have seven full time employees and two part time employees. Our weekly customer count ranges between 6,000 and 7,000 people depending upon the conferences held in the auditorium. For a number of years the facility has needed some renovation work. There are walls that need painting, floors that need to be resurfaced and carpets in the walkways of the dining rooms that need to be replaced. NIH is desirous of resolving these problems and expanding the service area to more efficiently serve their employees and visitors to the building. Because of budgets these projects have not been accomplished. These conditions reflect poorly on the Randolph-Sheppard

program. I must hasten to add, however, that NIH has been, over the years, most supportive and cooperative with the Maryland vending program. Happily, this week serious efforts have begun to spruce up this facility until the needed expansion/renovation can be made.

These types of building management problems exist in other places. I am sure that this situation is repeated many times throughout the country.

The Randolph-Sheppard program deserves continued support because it provides an excellent employment option for blind persons who are employed at a rate exceeding 70 percent. The most recent RSA annual report highlighted the continuing decline in the number of vendors in the program. According to the report there are now 3,503 vendors in the program, down 53 from the year before. The 1974 amendments to the Randolph-Sheppard Act were meant to strengthen the program. But because of the lack of proper implementation and oversight, inadequate regulations and non-compliance on the part of some Federal agencies and the unwillingness to provide Federal funding for expansion and renovation, the vision of blind persons and of Congress has dimmed. The Randolph-Sheppard Vendors of America, and the American Council of the Blind with which it is affiliated, along with other advocacy organizations for the blind have spent much time and money attempting to secure implementation of and compliance with the act. We believe that the act itself is sufficient and does not require additional legislation. We support an appropriation of $16 million for the Randolph-Sheppard program to be used by the State licensing agencies to expand and renovate their State programs.

On behalf of the Randolph-Sheppard Vendors of America I want to thank you for your interest in our program and for your support. We appreciate the opportunity to be here today. Thank you.

Chairman OWENS. Thank you.

I want to thank all three of you gentlemen. We wanted to open with this panel to get some basic background and information on the program. It has been 12 years since it was reviewed, and I want to thank you for being very helpful in providing that kind of background and overview.

I am disturbed greatly by the fact that all three of you indicate that we really don't need to write new legislation or revise legislation at all, certainly not extensively, and yet you have all these problems.

Mr. Humphreys, you talked about the fact that the courts are reluctant to enforce the law, and we are in trouble if the courts won't enforce the law-and the law is pretty clear, you say, in terms of the requirement that the Secretary pay reasonable costs for arbitration, but he won't do it.

In terms of rulemaking, Mr. McDaniel, you said the Secretary and the department could correct a lot of problems by changing the rulemaking. What is there for Congress to do, in your opinion, other than the $16 million appropriation? I got that message.

What is there for Congress to do? The Executive Branch is not doing its job; the courts are not doing their job. What do you propose for us?

Mr. MCDANIEL. Well, I do think that with respect to the costs of arbitration, that is the part of it for the complaining parties; that if your subcommittee or you as Chairman would ask the General Accounting Office for an opinion on that, I think they might very well come out with the right answer because that hasn't been done, as far as I know.

I think also, that if in considering any legislation, appropriation, or the reauthorization of the Rehabilitation Act, if some provision could be put in which, in effect, would do for this program what the Civil Rights Act of 1991 does for some civil rights decisions in the Supreme Court, that is to say reverse them. That is a mecha

nism that Congress could explore as guidance to the courts, because their decisions have gone all over the place.

It is not a well understood employment program and we need to do what we can to make it work without tinkering with the Act itself, I think.

Chairman OWENS. Mr. McDaniel.

Mr. MCDANIEL. Yes.

Chairman OWENS. Have any of these cases gone all the way to the Supreme Court?

Mr. MCDANIEL. There have been a couple. There was one in particular where the Supreme Court didn't take the case. Bob Humphreys whispers to me there have been a couple. I don't recall the styles of those cases, but perhaps he can furnish that.

Chairman OWENS. Mr. Humphreys.

Mr. HUMPHREYS. Yes, Mr. Chairman. In both cases that I know of, McNabb case and Schlank case, the Supreme Court denied Cert on appeal from, in one case, the Court of Appeals for the District, and the other case the U.S. Court of Appeals for the District of Columbia.

I would endorse what Mr. McDaniels indicated in that the courts and the agencies need to be, I think, re-apprised of what the Act intended and what it requires. Whether that demands a specific reversal as in the ADA and the Civil Rights Act of incorrect decisions or whether it is sufficient to express the intent of the Congress through a report language, I am not certain at this present time. But I am clear that something must be done to clarify for these bodies, the Federal property managing agencies, the Department of Education, the State licensing agencies, the courts, these misinterpretations that have arisen.

Chairman OWENS. There seems also to be a pattern of hostility expressed through technicalities.

Mr. HUMPHREYS. I think that you are right.

Chairman OWENS. When you have a contract that must meet multi-State and national arrangements, you know the likelihood that blind vendors are going to be able to meet those requirements is limited.

If you require renovations be done by the vendor and it costs $7 million for renovations, you know they are not likely to meet those. I find it strange all this should be going on with an administration which has clearly expressed a great deal of concern for people with disabilities.

Do you find the trend in the last 2, 3 years has been moving in the right direction, or have things continually gone downhill in the last 2 or 3 years?

Mr. HUMPHREYS. It has at least from my perspective, and the others can, of course, express their own views; I have really seen very little, if any, improvement for the better, any recognition that the Act should be adhered to to any greater degree.

In fact, it may be that building upon previous denials of the priority, Federal property managers and perhaps courts, I don't know, are encouraged to believe that the Act is not what it says it is, that it should be interpreted in a way that has been incorrectly interpreted before. And it is.

Chairman OWENS. Do you maintain the language is pretty clear?

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Mr. HUMPHREYS. To me, it is.

Chairman OWENS. It is not ambiguous?

Mr. HUMPHREYS. I was in on the writing of it, so I may have a particular perspective that is not shared by everybody and apparently isn't. But I think that those of us here at this table and others who have worked in the program believe that it is clear.

Chairman OWENS. Again, thank you very much, gentlemen. We appreciate your appearing here today.

I am pleased to welcome the Assistant Secretary for the Office of Special Education and Rehabilitative Services, Dr. Robert Davila, accompanied by Ms. Nell Carney, Commissioner of the Rehabilitation Services Administration.

Welcome, Mr. Secretary. Please begin.

STATEMENTS OF ROBERT DAVILA, ASSISTANT SECRETARY, OFFICE OF SPECIAL EDUCATION AND REHABILITATIVE SERV. ICES, U.S. DEPARTMENT OF EDUCATION; ACCOMPANIED BY NELL CARNEY, COMMISSIONER, REHABILITATION SERVICES ADMINISTRATION

Mr. DAVILA. Thank you, Mr. Chairman. It is a pleasure to appear before you and this subcommittee to discuss the Randolph-Sheppard Vending Facility program.

The Randolph-Sheppard program, established by law over 50 years ago, is intended to enhance employment opportunities for trained, licensed persons who are blind to operate certain types of facilities.

At the outset, sundry stands were placed in the lobbies of Federal office buildings and post offices. The law was subsequently amended, most recently in 1974, to ultimately ensure persons who are blind a priority in the management and operation of vending facilities, a term which includes cafeterias, snack bars, and automatic vending machines.

Over 22,000 persons who are blind have been employed in this program since its inception in 1936. The program has broadened considerably from Federal locations to also include State, county, municipal and private installations.

However, the priority provisions of the Act apply only to the operations of vending facilities on Federal property. In fiscal year 1990, there were 3,291 vending facilities providing employment for 3,503 blind vendors under licenses granted by State licensing agencies which administer the program.

These facilities earned a total of $74.7 million in fiscal year 1990, with average vendor earning approximately $24,000 annually in wages. In addition to the blind vendors, the program employs over 500 individuals with visual impairments and over 500 persons with other disabilities.

The 1974 amendments to the Act established grievance procedures for licensed vendors to file complaints against State licensing agencies (SLAs), and complaints of licensing agencies against Federal departments or agencies. Each SLA is required to have procedures that entitle an aggrieved vendor to a fair hearing by the SLA.