DAR File No. 32204

Administrative Services, Administration

R13-3

Americans with Disabilities Act Grievance Procedures

NOTICE OF PROPOSED RULE

DAR File No.: 32204
Filed: 12/09/2008, 03:34
Received by: NL

RULE ANALYSIS

Purpose of the rule or reason for the change:

As part of the five-year review process, the department asked the Division of Risk Management to review this rule and determine if changes were required. Risk Management responded with several changes. This amendment also makes wording changes to improve the structure and readability of the rule.

Summary of the rule or change:

In Section R13-3-2, the amendment updates the definitions of "disability", "major life activity", and "qualified individual with a disability". In Subsection R13-3-3(1), the amendment removes obsolete language pertaining to complaints made in 1992. This amendment reorders the language in Subsections R13-3-4(3) and R13-3-6(5) to make the rule read properly. In these subsections, one of the triggers for consultation is changed from "reclassification or reallocation in grade" to "reassignment to a different position".

State statutory or constitutional authorization for this rule:

Section 63A-1-105.5, Subsection 63G-3-201(3), and 28 CFR 35.107

Anticipated cost or savings to:

the state budget:

This amendment has no impact to the state budget. It clarifies and updates existing language. It does not change the complaint procedure, investigation procedure, or appeals procedure.

local governments:

This amendment has no impact on local governments. The complaint procedure is available to individuals, not local governments.

small businesses and persons other than businesses:

This amendment has no impact to small businesses or persons other than businesses. The amendment clarifies and updates existing language. It does not change the complaint procedure, investigation procedure, or appeals procedure.

Compliance costs for affected persons:

This amendment makes no change in compliance costs for affected persons. The amendment clarifies and updates existing language. It does not change the complaint procedure, investigation procedure, or appeals procedure.

Comments by the department head on the fiscal impact the rule may have on businesses:

This rule has no impact on businesses. It provides a procedure for individuals to follow to file an ADA complaint. It does not substantively change the complaint procedure, or appeals procedure that individuals would use to pursue a complaint. Kimberly K. Hood, Executive Director

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Administrative Services
Administration
Room 3120 STATE OFFICE BLDG
450 N MAIN ST
SALT LAKE CITY UT 84114-1201

Direct questions regarding this rule to:

Kenneth A. Hansen at the above address, by phone at 801-538-3777, by FAX at 801-538-1773, or by Internet E-mail at khansen@utah.gov

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

02/02/2009

This rule may become effective on:

02/09/2009

Authorized by:

Kimberly K Hood, Executive Director

R13. Administrative Services, Administration.

R13-3. Americans with Disabilities Act Grievance Procedures.

R13-3-2. Definitions.

(1) "ADA Coordinator" means the employee assigned by the executive director the responsibility for investigating and facilitating prompt and equitable resolution of complaints filed by qualified persons with disabilities.

(2) "Department" means the department of administrative services.

(3) "Director" means the head of the division of the department of administrative services affected by a complaint filed under this rule.

(4) "Disability" means, with respect to a qualified individual with a disability, a physical or mental impairment that substantially limits one or more of the major life activities of such an individual compared to the average person in the general population, taking into account mitigating measure; a record of such an impairment; or being regarded as having such an impairment.

(5) "Executive Director" means the executive director of the department.

(6) "Major life activities" means activities that are of essential importance to daily life, [functions ]such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.

(7) "Qualified Individual with a Disability" means an individual with a disability, who with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by the Department of Administrative Services. A "qualified individual with a disability" also includes an employee or applicant with an ADA-qualifying disability, who can perform the essential functions of his or her actual or desired position, with or without a reasonable accommodation.

 

R13-3-3. Filing of Complaints.

(1) Any qualified individual with a disability may file a complaint within 60 days of the alleged noncompliance with the provisions Title II of the Americans with Disabilities Act of 1990 or the federal regulations promulgated thereunder. Complaints shall be filed within 60 days to assure prompt, effective assessment and consideration of the facts and to allow time to pursue other available remedies, if necessary. [However, any complaint alleging an act of discrimination occurring between January 26, 1992, and the effective date of this rule may be filed within 60 days of the effective date of this rule. ]The filing of a complaint or of a subsequent appeal is authorization by the complainant to allow necessary parties to review all relevant information, including records classified as private or controlled under the Government Records Access and Management Act (Section 63G-2-101) and information otherwise protected by statute, rule, regulation, or other law.

(2) The complaint shall be filed with the ADA Coordinator in writing or in another accessible format suitable to the complainant.

(3) Each complaint shall:

(a) include the complainant's name and address;

(b) include the nature and extent of the individual's disability;

(c) describe the department's alleged discriminatory action in sufficient detail to inform the department of the nature and date of the alleged violation;

(d) describe the action and accommodation desired; and

(e) be signed by the complainant or by his legal representative.

(3) Complaints filed on behalf of classes or third parties shall describe or identify by name, if possible, the alleged victims of discrimination.

(4) If the complaint is not in writing, the ADA coordinator shall transcribe or otherwise reduce the complaint to writing upon receipt of the complaint.

 

R13-3-4. Investigation of Complaints.

(1) The ADA coordinator shall investigate complaints to the extent necessary to assure all relevant facts are collected and documented. This may include gathering all information listed in Subsection R13-3-3(3) of this rule if it is not made available by the complainant.

(2) The ADA coordinator may seek assistance from the Attorney General's staff, and the department's human resource and budget staff in determining what action, if any, should be taken on the complaint. The ADA coordinator may also consult with the director of the affected division in making a recommendation.

(3) The ADA coordinator shall consult with representatives from other state agencies that could be affected by the decision, including the Office of Planning and Budget, the Department of Human Resource Management, the Division of Risk Management, the Division of Facilities Construction Management, and the Office of the Attorney General [Before]before making any recommendation that would:

(a) involve an expenditure of funds beyond what is reasonably able to be accommodated within the applicable line item so that it would require a separate appropriation;

(b) require facility modifications; or

(c) require reassignment to a different position[reclassification or reallocation in grade; the coordinator shall consult with representatives from other state agencies that could be affected by the decision, including the Office of Planning and Budget, the Department of Human Resource Management, the Division of Risk Management, the Division of Facilities Construction Management, and the Office of the Attorney General].

 

R13-3-5. Recommendation and Decision.

(1) Within 15 working days after receiving the complaint, the ADA coordinator shall recommend to the director what action, if any, should be taken on the complaint. The recommendation shall be in writing or in another accessible format suitable to the complainant.

(2) If the ADA coordinator is unable to make a recommendation within the 15 working day period, he shall notify the complainant in writing or in another accessible format suitable to the complainant stating why the recommendation is delayed and what additional time is needed.

(3) The director may confer with the ADA coordinator and the complainant and may accept or modify the recommendation to resolve the cause of the complaint. The director shall decide within 15 working days. The director shall take all reasonable steps to implement his decision. The decision shall be in writing or in another accessible format suitable to the complainant.

 

R13-3-6. Appeals.

(1) The complainant may appeal the director's decision to the executive director within ten working days from the receipt of the decision.

(2) The appeal shall be in writing or in another accessible format reasonably suited to the complainant's ability.

(3) The executive director may name a designee to assist on the appeal. The ADA coordinator may not also be the executive director's designee for the appeal.

(4) The appeal shall describe in sufficient detail why the decision does not meet the complainant's needs without undue hardship to the department.

(5) The executive director or designee shall review the ADA coordinator's recommendation, the director's decision, and the points raised on appeal prior to reaching a decision. The executive director may direct additional investigation as necessary. The executive director shall consult with representatives from other state agencies that would be affected by the decision, including the Office of Planning and Budget, the Department of Human Resource Management, the Division of Risk Management, the Division of Facilities Construction Management, and the Office of the Attorney General [Before]before making any decision that would:

(a) involve an expenditure of funds beyond what is reasonably able to be accommodated within the applicable line item so that it would require a separate appropriation;

(b) require facility modifications; or

(c) require reassignment to a different position[reclassification or reallocation in grade; the executive director shall consult with representatives from other state agencies that would be affected by the decision, including the Office of Planning and Budget, the Department of Human Resource Management, the Division of Risk Management, the Division of Facilities Construction Management, and the Office of the Attorney General].

(6) The executive director shall issue his decision within 15 working days after receiving the appeal. The decision shall be in writing or in another accessible format suitable to the complainant.

(7) If the executive director or his designee is unable to reach a decision within the 15 working day period, he shall notify the individual in writing or by another accessible format suitable to the complainant why the decision is being delayed and the additional time needed to reach a decision.

 

R13-3-8. Relationship to Other Laws.

This rule does not prohibit or limit the use of remedies available to individuals under:

(a) the [State]state Anti-Discrimination Complaint Procedures, Section 35A-5-107, and Section 67-19-32;

(b) the Federal ADA Complaint Procedures, 28 CFR 35.170 through 28 CFR 35.178; or

(c) any other Utah State or federal law that provides equal or greater protection for the rights of individuals with disabilities.

 

KEY: grievance procedures, disabled persons

Date of Enactment or Last Substantive Amendment: [1993]2009

Notice of Continuation: December 10, 2007

Authorizing, and Implemented or Interpreted Law: 63A-1-105.5; 63G-3-201(3); 28 CFR 35.107