Pardons (Board Of), Administration

Rule R671-102

Americans with Disabilities Act Complaint Procedures Rule

Notice of Proposed Rule

(Amendment)

DAR File No.: 34867
Filed: 05/24/2011 09:19:29 AM

RULE ANALYSIS

Purpose of the rule or reason for the change:

The Board's original ADA rule referred to an "ADA State Coordinating Committee." This committee has not functioned for approximately nine years, yet our ADA administrative rule still referred to this defunct committee. In addition, the ADA was amended effective 01/01/2009.

Summary of the rule or change:

The changes to this rule detail who, within the Board staff, will handle ADA complaints and the time allotted to them to address and resolve them. These changes have been suggested and evaluated by the Attorney General's office to ensure compliance with ADA, and remove references to the defunct committee named above.

State statutory or constitutional authorization for this rule:

• Section 67-19-32
• Title 63G, Chapter 2

Anticipated cost or savings to:

the state budget:

The state budget is not impacted by the changes in this rule because they are merely a change of who handles ADA complaints at the Board and the time limits within our agency for handling them. These are internal process changes.

local governments:

Local government is not impacted by the changes in this rule because they are merely a change of who handles ADA complaints at the Board and the time limits within our agency for handling them. These are internal process changes.

small businesses:

Small businesses are not impacted by the changes in this rule because they are merely a change of who handles ADA complaints at the Board and the time limits within our agency for handling them. These are internal process changes.

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

Other persons are not impacted by the changes in this rule because they are merely a change of who handles ADA complaints at the Board and the time limits within our agency for handling them. These are internal process changes.

Compliance costs for affected persons:

There are no compliance costs for affected persons associated with changing an internal process of handling ADA complaints.

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

None--No impact on business.

Clark A. Harms, Chairman

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

Pardons (Board Of)
Administration
448 E 6400 S
SALT LAKE CITY, UT 84107-8530

Direct questions regarding this rule to:

• John Green at the above address, by phone at 801-261-6464, by FAX at 801-261-6481, or by Internet E-mail at jagreen@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:

07/15/2011

Interested persons may attend a public hearing regarding this rule:

• 05/23/2011 08:00 AM, Board of Pardons and Parole, 448 E 6400 S, Suite 300, Murray, UT

This rule may become effective on:

07/22/2011

Authorized by:

Clark Harms, Chairman

R671. Pardons (Board of), Administration.

R671-102. Americans with Disabilities Act Complaint Procedures.[Rule.]

R671-102-1. [Purpose and Authority.]Authority and Purpose.

[A.](1) This rule is [promulgated pursuant to Section 63G-3-201 (2)]made under authority of Utah Code Ann. Subection 63G-3-201(3).[ of the State Administrative Rulemaking Act.] The Board of Pardons and Parole (Board) adopts, defines, and publishes within this rule [complaint]the grievance procedures [to provide] for the prompt and equitable resolution of complaints [filed in accordance with]alleging any action prohibited by Title II of the Americans with Disabilities Act, [42 U.S.C. 12131-12134]as amended.

[B.](2) [No qualified individual with a disability, by reason of such disability, shall be excluded from participation in or be denied the benefits of the services, programs, or activities of this agency, or be subjected to discrimination by this agency.]The purpose of this rule is to implement the provisions of Title II of the Americans with Disabilities Act, which provides that no individual shall 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 Board because of a disability.

 

R671-102-2. Definitions.

[A.](1) "[The] ADA Coordinator" [or "Coordinator"] means the Board's [of Pardons and Parole] Administrative Coordinator , [or other Board designee, who has responsibility for investigating and providing prompt and equitable resolution of complaints filed by qualified individuals with disabilities in accordance with the Americans With Disabilities Act, or provisions of this rule.]assigned by the Board's Chairperson to investigate and facilitate the prompt and equitable resolution of complaints filed by qualified persons with disabilities. The ADA Coordinator may also be a representative of the Department of Human Resource Management assigned to the Board.

[B.](2) "[The ADA State Coordinating Committee]Board" means [that committee with representatives designated by the directors of the following agencies:

(1) Office of Planning and Budget;

(2) Department of Human Resource Management;

(3) Division of Risk Management;

(4) Division of Facilities Construction Management; and

(5) Office of Attorney General.]the Board of Pardons and Parole created by Utah Const. Art. 7, Section 12(1), and Utah Code Ann. Section 77-27-2(1).

[C.](3) "[Agency]Chairperson" [means the Board of Pardons and Parole.]as provided in Utah Code Ann. Subsection 77-27-4(1), means the Board's Chairperson.

[D.](4) "[Disability]Designee" means[, with respect to an individual with a disability, a physical or mental impairment that substantially limits one or more of the major life activities of such an individual; a record of such an impairment; or being regarded as having such an impairment.]an individual appointed by the Board's Chairperson, or the Board's Vice-Chairperson, 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 Board; however, the designee must have a working knowledge of the responsibilities and obligations required of employers and employees by the ADA.

[E.](5) "[Major life activities]Disability" means , [functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.]with respect to an individual, a physical or mental impairment that substantially limits one or more of the major life activities of such individual; a record of such an impairment; or being regarded as having such an impairment.

[F.](6) "[Individual with a disability]Major life activities" [(hereafter individual) means a person who has a disability which limits one of his/her major life activities and who meets the essential eligibility requirement for the receipt of services or the participation in programs or activities provided by the Board, or who would otherwise be an eligible applicant for vacant state positions, as well as those who are employees of the state.

G. "Board" means the Board of Pardons and Parole.

H. "Chairman" or "Chairman of the Board" means Chairman of the Board of Pardons and Parole.]include caring for oneself, performing manual tasks, 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 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) "Qualified Individual" means an individual who meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by the Board. A "qualified individual" is also one who, with or without reasonable accommodation, can perform the essential functions of the employment position that individual holds or desires.

(8) "Vice-Chairperson," as provided in Utah Code Ann. Subsection 77-27-4(2), means the Board's Vice-Chairperson.

 

R671-102-3. Filing of Complaints.

[A. A complaint shall be filed in a timely manner to assure prompt, effective assessment and consideration of the facts, but no later than 60 days from the date of the alleged act of discrimination.

B. The Complaint shall be filed with the Board's ADA Coordinator in writing or in another accessible format suitable to the individual.

C. Each complaint shall:

(1) include the individual's name and address;

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

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

(4) describe the action and accommodation desired; and

(5) be signed by the individual or by his/her legal representative.](1) Any qualified individual may file a compliant alleging non-compliance with Title II of the Americans with Disabilities Act, as amended, or the federal regulations promulgated thereunder.

(2) Qualified individuals shall file their complaints with the Board'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 Board's designee.

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

(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 Board's alleged discriminatory action in sufficient detail to inform the Board 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.

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

(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 filing a complaint or a subsequent appeal, the complainant authorizes necessary parties to conduct a confidential review of all relevant information, including records classified as private or controlled under the Government Records Access and Management Act, Utah Code Ann. 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. 2112(d)(3)(B) and (C), and relevant information otherwise protected by statute, rule, regulation, or other law.

 

R671-102-4. Investigation of Complaints.

[A.](1) The ADA Coordinator [shall conduct an investigation of each complaint received. The investigation]or designee shall [be conducted to]investigate complaints to the extent necessary to assure all relevant facts are [determined]collected and documented. This may include gathering all information listed in [Section 3 (C)]Subsections R671-102-3(4) and (7) of this rule if it is not made available by the [individual]complainant.

[B.](2) [When conducting the investigation, the Coordinator may seek assistance from the Board's legal, human resource and budget staff in determining what action, if any, shall be taken on the complaint. Before making any decision that would involve:

(1) an expenditure of funds which is not absorbable within the agency's budget and would require appropriation authority;

(2) facility modifications which require an expenditure of funds which is not absorbable within the agency's budget and would require appropriation authority; or

(3) reclassification or reallocation in grade; the Coordinator shall consult with the ADA State Coordinating Committee.]The ADA Coordinator or designee may seek assistance from the Attorney General's staff, and the Board'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 Vice-Chairperson in making a recommendation.

(3) The ADA Coordinator or designee shall consult with representatives from other state agencies that 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.

 

R671-102-5. [Issuance of]Recommendation and Decision.

[A.](1) Within 15 working days after receiving the complaint, the ADA Coordinator or designee shall [issue a decision outlining in writing, or in another suitable format, stating]recommend to the Board's Vice-Chairperson what action, if any, [shall]should be taken on the complaint. The recommendation shall be in writing or in another accessible format suitable to the complainant.

[B.](2) If the ADA Coordinator or designee is unable to [reach a decision]make a recommendation within the 15 working day period, [he/she]the complainant shall [notify the individual]be notified in writing or [by]in another [suitable]accessible format suitable to the complainant stating why the [decision]recommendation is [being] delayed and what additional time is needed [to reach a decision].

(3) The Board's Vice-Chairperson may confer with the ADA Coordinator or designee and the complainant and may accept or modify the recommendation to resolve the complaint. The Board's Vice-Chairperson shall render a decision within 15 working days after the Board's Vice- Chairperson's receipt of the recommendation from the ADA Coordinator or designee. The Board's Vice-Chairperson shall take all reasonable steps to implement the decision. The Board's Vice-Chairperson's decision shall be in writing, or in another accessible format suitable to the complainant, and shall be promptly delivered to the complainant.

 

R671-102-6. Appeals.

[A.](1) The [individual]complainant may appeal the Board's Vice-Chairperson's decision [of the ADA Coordinator by filing an appeal]to the Board's Chairperson within [five]ten working days [from]after the complainant's receipt of the Vice Chairperson's decision.

[B.](2) The appeal shall be [filed] in writing [with the Board's Chairman or a designee other than the Board's ADA Coordinator.]or in another accessible format reasonably suited to the complainant's ability.

[C.](3) The [filing of an appeal shall be considered as authorization to the Chairman or designee, by the individual, to allow review of all information, including information classified as private or controlled.]Board's Chairperson may name a designee to assist on the appeal. The ADA coordinator or his designee may not also be the Board's Chairperson's designee for the appeal.

[D.](4) [The]In the appeal , the complainant shall describe in sufficient detail why the [Coordinator's] decision [is in error, is incomplete or ambiguous, is not supported by the evidence, or is otherwise improper.]does not effectively address the complainant's needs.

[E.](5) The Board's [Chairman]Chairperson or his designee shall review the [factual findings]ADA Coordinator's or his designee's recommendation, the Board's Vice-Chairperson's decision, and the points raised on appeal prior to reaching a decision. [of the investigation and the individual's statement regarding the inappropriateness of the Coordinator's decision and arrive at an independent conclusion and recommendation. Additional investigations may be conducted if necessary to clarify questions of fact before arriving at an independent conclusion. Before making any decision that would involve:]The Board's Chairperson may direct additional investigation as necessary. The Board's Chairperson 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:

[(1)] (a) involve an expenditure of funds beyond [which is not absorbable and would require appropriation authority;]what is reasonably able to be accommodated within the applicable line item so that it would require a separate appropriation;

[(2)] (b) require facility modifications ; or [which require an expenditure of funds which is not absorbable and would require appropriation authority; or]

[(3)] (c) require [reclassification or reallocation in grade; the Chairman or designee shall also consult with the State ADA Coordinating Committee.]reassignment to a different position.

[F.](6) [The decision shall be issued within ten working days after receiving the appeal and shall be in writing or in another suitable format to the individual.]The Board's Chairperson shall issue 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.

[G.](7) If the Board's [Chairman]Chairperson [or designee] is unable to reach a final decision within the [ten]15 working day period, [he/she]the complainant shall [notify the individual]be notified in writing , or by another [suitable]accessible format suitable to the complainant, why the final decision is being delayed and the additional time needed to reach a final decision.

 

R671-102-7. [Classification of Records.]Record Classification.

[A. The record of each complaint and appeal, and all written records produced or received as part of such actions, shall be classified as protected as defined under Section 63G-2-305 until the ADA Coordinator, the Chairman or their designees issue the decision, at which time any portions of the record which may pertain to the individual's medical condition shall remain classified as private as defined under Section 63G-2-302 or controlled as defined in Section 63G-304. All other information gathered as part of the complaint record shall be classified as private information. Only the written decision of the Coordinator, Chairman or designees shall be classified as public information.](1) Records created in administering this rule are classified as "protected" under Utah Code Ann. Subsections 63G-2-305(9), (22), (24), and (25).

(2) After issuing a decision under Section R671-102-5, or a final decision upon appeal under Section R671-102-6, portions of the record pertaining to the complainant's medical condition shall be classified as "private" under Utah Code Ann. Subsection 63G-2-302(1)(b), or "controlled" under Utah Code Ann. Section 63G-2-304, consistent with 42 U.S.C. 12112(d)(4)(A), 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 Board's Vice-Chairperson or the Board's Chairperson shall be classified as "public," and all other records, except controlled records under Subsection R671-102-7(2), classified as "private."

 

R671-102-8. Relationship to Other Laws.

[A.] This rule does not prohibit or limit the use of remedies available to individuals under:[ the State Anti-Discrimination Complaint Procedures Section 67-19-32; the Federal ADA Complaint Procedures (2002 Edition, beginning with Part 35.170); or any other Utah State or Federal law that provides equal or greater protection for the rights of individuals with disabilities.]

(a) the state Anti-Discrimination Complaint Procedures, Utah Code Ann. Section 34A-5-107 and Utah Code Ann. 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.

 

[R671-102-9. Interpreters.

The Board will provide interpreters for the hearing impaired.

 

]KEY: disabilities

Date of Enactment or Last Substantive Amendment: [September 27, 2007]2011

Notice of Continuation: July 25, 2007

Authorizing, and Implemented or Interpreted Law: 67-19-32; 63G-2