File No. 36067
This rule was published in the May 1, 2012, issue (Vol. 2012, No. 9) of the Utah State Bulletin.
Education, Administration
Rule R277-104
USOE ADA Complaint Procedure
Notice of Proposed Rule
(Repeal and Reenact)
DAR File No.: 36067
Filed: 04/16/2012 08:54:20 AM
RULE ANALYSIS
Purpose of the rule or reason for the change:
The purpose of the repeal and reenactment of this rule is to make significant changes to the standards and procedures for ADA complaints consistent with Utah State Office of Education (USOE) and Utah State Office of Rehabilitation (USOR) requirements for ADA complaints procedures.
Summary of the rule or change:
The reenacted rule provides significant changes to the rule that include combining the USOE and USOR ADA complaint procedures into one rule, changing language to address only individuals other than USOE and USOR employees (e.g., invitees, visitors, other government employees). USOE and USOR employee ADA complaints will be addressed by the Department of Human Resource Management.
State statutory or constitutional authorization for this rule:
- 28 CFR 35.107
Anticipated cost or savings to:
the state budget:
There are no anticipated cost or savings to the state budget. The USOE and USOR are and have been obligated to follow federal law concerning ADA complaint procedures.
local governments:
There are no anticipated cost or savings to local government. This rule applies to ADA complaints at the state level.
small businesses:
There are no anticipated cost or savings to small businesses. The provisions under this rule do not apply to businesses.
persons other than small businesses, businesses, or local governmental entities:
There are no anticipated cost or savings to persons other than small businesses, businesses, or local government entities. The USOE and USOR are and have been obligated to follow federal law concerning ADA complaints.
Compliance costs for affected persons:
There are no compliance costs for affected persons. The USOE and USOR will continue to comply with federal law concerning ADA complaints.
Comments by the department head on the fiscal impact the rule may have on businesses:
I have reviewed this rule and I see no fiscal impact on businesses.
Larry K. Shumway, State Superintendent
The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:
EducationAdministration
250 E 500 S
SALT LAKE CITY, UT 84111-3272
Direct questions regarding this rule to:
- Carol Lear at the above address, by phone at 801-538-7835, by FAX at 801-538-7768, or by Internet E-mail at carol.lear@schools.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:
05/31/2012
This rule may become effective on:
06/07/2012
Authorized by:
Carol Lear, Director, School Law and Legislation
RULE TEXT
R277. Education, Administration.
[
R277-104. USOE ADA Complaint Procedure.
R277-104-1. Definitions.
A. "ADA" means the Americans with Disabilities
Act, 42 U.S.C. 12201, which provides that no qualified individual
with a disability, by reason of such 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 this or any such entity.
B. "The ADA Coordinator" means the designee of
the State Board of Education, 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.
C. "The ADA State Coordinating Committee" 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 the Attorney General.
D. "Disability" means, with respect to an
individual 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. The definition of
"disability" specifically excludes: transvestism,
transsexualism, pedophilia, exhibitionism, voyeurism, gender
identity disorders not resulting from physical impairments, other
sexual behavior disorders, compulsive gambling, kleptomania,
pyromania, and psychoactive substance use disorders resulting
from current illegal use of drugs.
E. "Major life activities" means functions such
as caring for one's self, performing manual tasks, walking,
seeing, hearing, speaking, breathing, learning, and
working.
F. "Individual with a disability" (hereinafter
individual) means a person who has a disability which limits one
of his 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 USOE or
the State Board of Education, or who would otherwise be an
eligible applicant for vacant state positions, as well as those
who are employees of the state.
G. "Superintendent" means the State
Superintendent of Public Instruction.
H. "USOE" means the Utah State Office of
Education.
R277-104-2. Authority and Purpose.
A. This rule is authorized pursuant to 28 CFR 35.107,
1992 edition, which adopts, defines, and publishes complaint
procedures providing for prompt and equitable resolution of
complaints filed in accordance with Title II of the Americans
with Disabilities Act, 28 CFR 35, 1992 edition.
B. The purpose of this rule is to establish a USOE
procedure for filing complaints under the federal ADA law,
provide an appeals procedure, and for appropriate classification
of the records of complaints and appeals.
C. 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
the USOE, or be subjected to discrimination by the USOE.
R277-104-3. Filing of Complaints.
A. The complaint shall be filed in a timely manner to
assure prompt, effective assessment and consideration of the
facts, but not later than 60 days from the date of the alleged
act of discrimination. 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.
B. The complaint shall be filed with the USOE'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 USOE's alleged discriminatory action
in sufficient detail to inform the USOE 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 legal
representative.
D. Complaints filed on behalf of classes or third parties
shall describe or identify by name, if possible, the alleged
victims of discrimination.
R277-104-4. Investigation of Complaint.
A. The ADA coordinator shall conduct an investigation of
each complaint received. The investigation shall be conducted to
the extent necessary to assure all relevant facts are determined
and documented. This may include gathering all information listed
in Section 3(C) of this rule if it is not made available by the
individual.
B. When conducting the investigation, the coordinator may
seek assistance from the USOE'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
an expenditure of funds which is not absorbable within the
USOE's budget and would require appropriation authority,
facility modifications, or reclassification or reallocation in
grade, the coordinator shall consult with the ADA State
Coordinating Committee.
R277-104-5. Issuance of Decision.
A. Within 30 working days after receiving the complaint,
the ADA coordinator shall issue a decision outlining in writing
or in another acceptable suitable format stating what action, if
any, shall be taken on the complaint.
B. If the coordinator is unable to reach a decision
within the 30 working day period, he shall notify the individual
with a disability in writing or by another acceptable suitable
format why the decision is being delayed and what additional time
is needed to reach a decision.
R277-104-6. Appeals.
A. The individual may appeal the decision of the ADA
coordinator by filing an appeal within 10 working days from the
receipt of the decision.
B. The appeal shall be filed in writing with the
Superintendent.
C. The filing of an appeal shall be considered as
authorization by the individual to allow review of all
information, including information classified as private or
controlled, by the Superintendent or designee.
D. The appeal 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.
E. The Superintendent shall review the factual findings
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
Superintendent to direct an expenditure of funds which is not
absorbable and would require appropriation authority, facility
modifications, or reclassification or reallocation in grade, he
shall also consult with the State ADA Coordinating
Committee.
F. The decision shall be issued within ten working days
after receiving the appeal and shall be in writing or in another
accessible suitable format to the individual.
G. If the Superintendent is unable to reach a decision
within the ten working day period, he shall notify the individual
in writing or by another acceptable suitable format why the
decision is being delayed and the additional time needed to reach
a decision.
R277-104-7. Classification of Records.
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 or Superintendent issues 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-2-304. All other information gathered as
part of the complaint record shall be classified as private
information. Only the written decision of the coordinator or
Superintendent shall be classified as public
information.
R277-104-8. Relationship to Other Laws.
This rule does not prohibit or limit the use of remedies
available to the individuals under the State Anti-Discrimination
Complaint Procedures, Section 67-19-32; the Federal ADA Complaint
Procedures (28 CFR Subpart F, beginning with Part 35.170, 1992
edition); or any other Utah state or federal law that provided
equal or greater protection for the rights of individuals with
disabilities.]
R277-104. ADA Complaint Procedure.
R277-104-1. Definitions.
A. "ADA" means the Americans with Disabilities Act, 42 U.S.C. 12201, which provides that no qualified individual with a disability, by reason of such 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 this or any such entity.
B. "The ADA Coordinator" means the designee of the Superintendent, who has responsibility for investigating and providing prompt and equitable resolution of complaints filed by qualified individuals with disabilities who are not USOE or USOR employees in accordance with the Americans with Disabilities Act, or provisions of this rule.
C. "Days" means calendar days.
D. "Disability" means, with respect to an individual disability, a physical or mental impairment that substantially limits one or more of the major life activities of such an individual consistent with the Americans with Disabilities Act, 42 U.S.C. 12201.
E. "Executive Director" means the Executive Director of the Utah State Office of Rehabilitation.
F. "Major life activities" means functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.
G. "Individual with a disability" (hereinafter individual) means a person who has a disability which limits one of his major life activities and who meets the essential eligibility requirement for the receipt of services or the participation in programs or activities. This rule is directed at non-employees, including all types and periods of employment, of the Board, the USOE or the USOR.
H. "Superintendent" means the State Superintendent of Public Instruction.
I. "USOE" means the Utah State Office of Education.
J. "USOR" means the Utah State Office of Rehabilitation.
R277-104-2. Authority and Purpose.
A. This rule is authorized pursuant to 28 CFR 35.107 which adopts, defines, and publishes complaint procedures providing for prompt and equitable resolution of complaints filed in accordance with Title II of the Americans with Disabilities Act, as amended.
B. The purpose of this rule is to establish USOE and USOR procedures for non-USOE, non-USOR and non-Board employees to file complaints under the federal ADA law and to provide appropriate classification of the records of complaints and appeals.
C. 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 the USOE or USOR, or be subjected to discrimination by the USOE or USOR.
R277-104-3. Filing of Complaints.
A. The complaint shall be filed in a timely manner to assure prompt, effective assessment and consideration of the facts, but not later than 30 days from the date of the alleged act of discrimination.
B. The complaint shall be filed with the USOE's ADA Coordinator in writing or in another format reasonable for the individual and the USOE or USOR.
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 USOE's or USOR's alleged discriminatory action in sufficient detail to inform the USOE or USOR 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 legal representative.
R277-104-4. Investigation of Complaint.
A. The ADA coordinator shall conduct an investigation of each complaint received. The investigation shall be conducted to the extent necessary to assure all relevant facts are determined and documented. This may include gathering all information listed in Section 3(C) of this rule if it is not made available by the individual.
B. When conducting the investigation, the coordinator may seek assistance from the USOE's and USOR's legal, human resource, budget, and State Risk Management staff in determining what action, if any, shall be taken on the complaint.
R277-104-5. ADA Coordinator Recommendation.
A. Within 30 days, the ADA Coordinator shall make a recommendation outlining what action, if any, shall be taken by the USOE or USOR on the complaint to the Superintendent, Executive Director, or both depending upon the circumstances of the complaint.
B. If the ADA Coordinator does not make a recommendation to the Superintendent within 30 days, the ADA Coordinator shall notify both the complainant and the Superintendent that the decision is delayed and provide a date certain for the investigation recommendation to be provided.
R277-104-6. Superintendent or the Executive Director or Both Review and Decision.
A. The Superintendent shall review the recommendation of the ADA Coordinator and make a final decision about action to be taken, if any, by the USOE or USOR.
B. The Superintendent shall provide a written decision to the complainant no more than 10 working days from the receipt of the ADA Coordinator's recommendation.
C. In making the decision, the Superintendent shall consult with the Executive Director if necessary and may discuss the investigation with the ADA Coordinator or other USOE or USOR employees, may gather additional information and interview other individuals with relevant information or expertise and shall give appropriate deference to the ADA Coordinator's fact finding and review of information.
D. The Superintendent's decision is the final USOE and USOR administrative decision regarding the complaint.
(1) If the complaint and recommendation is solely about USOR services or facilities, the Superintendent shall consult with the Executive Director in making the decision.
(2) If the complaint and decision include USOE actions or facilities only, the Superintendent shall make the final administrative decision.
R277-104-7. Classification of Records.
A. The investigative record of each complaint and all written records produced or received as part of such investigations, recommendations, or actions, shall be classified as protected under Section 63G-2-305, until the Superintendent issues the decision.
B. Any portions of the record which pertain to individual's medical condition shall remain classified as private, as defined under Section 63G-2-302, or controlled, as defined in Section 63G-2-304. All other information gathered as part of the complaint record shall be classified as protected information.
C. The final written decision of the Superintendent shall be public information.
R277-104-8. Relationship to Other Laws.
This rule does not prohibit or limit the use of remedies available to the individuals under Section 67-19-32; the Federal ADA Complaint Procedures (28 CFR Subpart F, beginning with Part 35.170, 1992 edition); or any other Utah state or federal law that provides equal or greater protection for the rights of individuals with disabilities.
KEY: complaints, disabled persons
Date of Enactment or Last Substantive Amendment: [1993]2012
Notice of Continuation: June 2, 2008
Authorizing, and Implemented or Interpreted Law: [28 CFR 35; ]28 CFR 35.107[; 42 U.S.C. 12201; 63G-2-305; 63G-2-302; 63G-2-304;
67-19-32]
Additional Information
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For questions regarding the content or application of this rule, please contact Carol Lear at the above address, by phone at 801-538-7835, by FAX at 801-538-7768, or by Internet E-mail at carol.lear@schools.utah.gov.