Administrative Services, Administration

Rule R13-3

Americans with Disabilities Act Grievance Procedures

Notice of Proposed Rule

(Amendment)

DAR File No.: 34347
Filed: 01/05/2011 04:43:54 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

Congress amended the Americans with Disabilities Act (ADA) by passing the ADA Amendments Act (ADAAA) of 2008 (Pub. L. No. 110-325; effective 01/01/2009). This notice of proposed rule amendment updates the Department's complaint procedures, which are required by 28 CFR 35.107(b).

Summary of the rule or change:

This proposed amendment: 1) updates definitions consistent with the Americans with Disabilities Act Amendments Act (ADAAA); 2) extends the period for filing a complaint from 60 days to 90 days, and provides the executive director with discretion to direct the use of the grievance process for complaints filed more than 90 days after the alleged noncompliance; 3) provides that by filing a complaint or subsequent appeal, the complainant authorizes a confidential review of all relevant records, including records classified as private or controlled under the Government Records Access and Management Act; 4) permits investigation by a designee of the executive director or director in the event that the Americans with Disabilities Act (ADA) coordinator is unable or unwilling to conduct the investigation; 5) requires prompt delivery of the executive director's final decision to the complainant; and 6) makes other stylistic changes.

State statutory or constitutional authorization for this rule:

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

Anticipated cost or savings to:

the state budget:

This amendment has no impact to the state budget. It clarifies and updates existing language. It provides administrative flexibility. Based on past experience, the change that extends the complaint filing window from 60 days to 90 days will not have any fiscal impact on the state.

local governments:

This amendment does not impact local governments. The complaint procedure is available to individuals, not local governments.

small businesses:

This amendment does not impact small businesses. The complaint procedure is available to individuals, not small businesses.

persons other than small businesses, businesses, or local governmental entities:

This amendment imposes no cost or savings to persons other than small businesses, businesses, or local government entities. The amendment clarifies and updates existing language. While the amendment provides for 30 additional days in which an individual may file a complaint, this additional time will not likely produce any additional cost or savings for the individual.

Compliance costs for affected persons:

This amendment makes no change in compliance costs for affected persons. The amendment clarifies and updates existing language. It provides an additional 30 days in which an individual may file an ADA complaint with the Department of Administrative Services.

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 with the Department of Administrative Services.

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
450 N STATE ST
SALT LAKE CITY, UT 84114-1201

Direct questions regarding this rule to:

• Kenneth Hansen at the above address, by phone at 801-538-3777, by FAX at 801-359-0759, 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:

03/03/2011

This rule may become effective on:

03/10/2011

Authorized by:

Kimberly Hood, Executive Director

R13. Administrative Services, Administration.

R13-3. Americans with Disabilities Act Grievance Procedures.

R13-3-1. Authority and Purpose.

(1) This rule is made under authority of Section 63A-1-105.5 and Subsection 63G-3-201(3). As required by 28 CFR 35.107, the Utah Department of Administrative Services, as a public entity that employs more than 50 persons, adopts and publishes the grievance procedures within this rule for the prompt and equitable resolution of complaints alleging any action prohibited by Title II of the Americans with Disabilities Act, as amended.[ of 1990 42 USC 12131 through 12165, and 28 CFR Part 35.]

(2) The purpose of this rule is to implement the provisions of 28 CFR 35 which in turn implements Title II of the Americans with Disabilities Act[ of 1990], which provides that no [qualified] individual [with a disability] shall[, by reason of this disability,] be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by the department because of a disability.

 

R13-3-2. Definitions.

(1) "ADA Coordinator" means the employee assigned by the executive director [the responsibility for investigating]to investigate and [facilitating]facilitate the prompt and equitable resolution of complaints filed by qualified persons with disabilities. The ADA Coordinator may be a representative of the Department of Human Resource Management assigned to the Department.

(2) "Department" means the [department of administrative services]Department of Administrative Services created by Section 63A-1-104.

(3) "Designee" means an individual appointed by the executive director or a director to investigate allegations of ADA non-compliance in the event the ADA Coordinator is unable or unwilling to conduct an investigation for any reason, including a conflict of interest. A designee does not have to be an employee of the department; however, the designee must have a working knowledge of the responsibilities and obligations required of employers and employees by the ADA.

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

[(4)](5) "Disability" means, with respect to a n [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)](6) "Executive Director" means the executive director of the department.

[(6)](7) "Major life activities" [means activities that are of essential importance to daily life, such as]include caring for [one's] oneself, performing manual tasks, [walking,] seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, and working. A major life activity also includes the operation of a major bodily function, such as functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.

[(7)](8) "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 , with or without reasonable accommodation, can perform the essential functions of the employment position that individual holds or desires[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]alleging noncompliance with [the provisions] Title II of the Americans with Disabilities Act[ of 1990], as amended, 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. 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]Qualified individuals shall file their complaints with the Department's ADA Coordinator , unless the complaint alleges that the ADA Coordinator was non-compliant, in which case qualified individuals shall file their complaints with the Department's designee[ in writing or in another accessible format suitable to the complainant.]

(3) Qualified individuals shall file their complaints within 90 days after the date of the alleged noncompliance to facilitate the prompt and effective consideration of pertinent facts and appropriate remedies; however, the Executive Director has the discretion to direct that the grievance process be utilized to address legitimate complaints filed more than 90 days after alleged noncompliance.

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

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

(7) By the filing of a complaint or a subsequent appeal, the complainant authorizes necessary parties to conduct a confidential review all relevant information, including records classified as private or controlled under the Government Records Access and Management Act, Utah Code, Subsection 63G-2-302(1)(b) and Section 63G-2-304,consistent with 42 U.S.C. 12112(d)(4)(A), (B), and (C) and 42 U.S.C. Section 12112(d)(3)(B) and (C), and relevant information otherwise protected by statute, rule, regulation, or other law.

 

R13-3-4. Investigation of Complaints.

(1) The ADA coordinator or designee 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)](4) and (7) of this rule if it is not made available by the complainant.

(2) The ADA coordinator or designee 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 or designee may also consult with the director of the affected division in making a recommendation.

(3) The ADA coordinator or designee shall consult with representatives from other state agencies that [could]may 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 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.

 

R13-3-5. Recommendation and Decision.

(1) Within 15 working days after receiving the complaint, the ADA coordinator or designee 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 or designee is unable to make a recommendation within the 15 working day period, [he shall notify] the complainant shall be notified 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 or designee and the complainant and may accept or modify the recommendation to resolve [the cause of] the complaint. The director shall [decide]render a decision within 15 working days after the director's receipt of the recommendation from the ADA coordinator or designee. The director shall take all reasonable steps to implement [his]the decision. The director's decision shall be in writing , or in another accessible format suitable to the complainant , and shall be promptly delivered 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]after the complainant's receipt of the director's 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 and the director's designee may not also be the executive director's designee for the appeal.

(4) In [The]the appeal the complainant shall describe in sufficient detail why the decision does not [meet]effectively address 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 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.

(6) The executive director shall issue [his]a final decision within 15 working days after receiving the complainant's appeal. The decision shall be in writing , or in another accessible format suitable to the complainant , and shall be promptly delivered to the complainant.

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

 

R13-3-7. Record Classification.

(1) Records created in administering this rule are classified as "protected" under S ubsection s 63G-2-305 (9), (22), (24), and (25).

(2) After issuing a decision under Section R13-3-5 or a final decision upon appeal under Section R13-3-6, portions of the record pertaining to the complainant's medical condition shall be classified as "private" under S ubsection 63G-2-302 (1)(b) or "controlled" under Section 63G-2-304, consistent with 42 U.S.C. 12112(d)(4)(A), (B), and (C) and 42 U.S.C. 12112(d)(3)(B) and (C), at the option of the ADA coordinator.

(a) The written decision of the division director or executive director shall be classified as "public," and all other records, except controlled records under Subsection R13-3-7(2), classified as "private."

 

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 Anti-Discrimination Complaint Procedures, Section 34A-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: [February 26, 2009]2011

Notice of Continuation: December 10, 2007

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