DAR File No. 39325

Human Services, Administration

Rule R495-878

Americans With Disabilities Act Grievance Procedures

Notice of Proposed Rule

(Repeal and Reenact)

DAR File No.: 39325
Filed: 04/30/2015 02:13:01 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

Department of Human Services is updating its grievance procedures to better inform the public and increase accountability.

Summary of the rule or change:

This rule provides a centralized grievance procedure for constituent complaints of discrimination. No significant substantive provisions in the repealed rule were eliminated from the enacted rule. The repealed rule was reorganized and internal procedures were adjusted in the enacted rule. The enacted rule adds alleged violations of Title VI of the Civil Rights Act, section 504 of the Rehabilitation Act, and the Age Discrimination Act, to the list of constituent complaints that may be submitted to the Department for investigation.

State statutory or constitutional authorization for this rule:

• 42 USC 2000d et seq.
• 42 USC 12131 et seq.
• 42 USC 6101 et seq.
• 29 USC 794 et seq.
• Subsection 63G-3-201(3)
• Section 62A-1-111
• 28 CFR 35.107

Anticipated cost or savings to:

the state budget:

This rule will change procedure but will not require any additional staff or resources and will not have any fiscal impact on the state budget.

local governments:

This rule will change procedure but will not require any additional staff or resources and will not have any fiscal impact on local government.

small businesses:

This rule will change procedure but will not require any additional staff or resources and will not have any fiscal impact on small businesses.

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

This rule will change procedure but will not require any additional staff or resources and will not have any fiscal impact on anyone in the grievance procedure.

Compliance costs for affected persons:

This rule will change procedure but will not require any additional staff or resources and will not have any fiscal impact on affected persons.

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

This rule will have no fiscal impact on businesses.

Ann Williamson, Executive Director

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

Human Services
Administration
Room DHS ADMINISTRATIVE OFFICE MULTI STATE OFFICE BUILDING
195 N 1950 W
SALT LAKE CITY, UT 84116

Direct questions regarding this rule to:

• Julene Robbins at the above address, by phone at 801-538-4521, by FAX at 801-538-3942, or by Internet E-mail at jhjonesrobbins@utah.gov
• Janell Hall at the above address, by phone at 801-538-4143, by FAX at 801-538-4317, or by Internet E-mail at janellhall@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:

06/15/2015

This rule may become effective on:

06/22/2015

Authorized by:

Ann Williamson, Executive Director

R495. Human Services, Administration.

[R495-878. Americans with Disabilities Act Grievance Procedures.

R495-878-1. Authority and Purpose.

(1) This rule is made under authority of Section 63A-1-111 and Subsection 63G-3-201(3). As required by 28 CFR 35.107, the Utah Department of Human 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.

(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, 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 department because of a disability.

 

R495-878-2. Definitions.

(1) "ADA Coordinator" means the employee assigned by the executive director to investigate and facilitate the prompt and equitable resolution of complaints filed by qualified persons with disabilities.

(2) "Department" means the Department of Human Services created by Section 62A-1-102.

(3) "Designee" means an individual appointed by the executive 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 affected by a complaint filed under this rule.

(5) "Disability" is defined in 28 CFR 35.104.

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

(7) "Major life activities" is defined in 28 CFR 35.104.

(8) "Qualified Individual" is defined in 28 CFR 35.104.

 

R495-878-3. Filing of Complaints.

(1) Any qualified individual or their authorized representative may file a complaint alleging noncompliance with Title II of the Americans with Disabilities Act, as amended, or the federal regulations promulgated thereunder.

(2) Qualified individuals or their authorized representatives 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.

(3) Qualified individuals or their authorized representatives shall file their complaints within 180 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 180 days after alleged noncompliance.

(4) Each complaint shall:

(a) Be in writing and delivered to:

ADA Coordinator

Department of Human Services

195 North 1950 West

Salt Lake City, Utah 84116

(b) Include the complainant's name and address;

(c) Include the nature and extent of the qualified individual's disability;

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

(e) Describe the action and accommodation desired; and

(f) Be signed by the complainant or by his legal representative.

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

 

R495-878-4. 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 R495-878-3(4) of this rule if it is not made available by the complainant.

(a) If the ADA Coordinator requires additional information from the complainant to complete the investigation, the ADA Coordinator shall send the complainant a records release form. This form shall be returned within 10 days of notice.

(2) The ADA coordinator or designee may seek assistance from the Attorney General's staff 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 may be affected by the decision, including the Office of Planning and Budget, 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; or

(b) require facility modifications;

 

R495-878-5. Recommendation and Decision.

(1) If the ADA coordinator or designee is unable to make a recommendation within the 15 working day period, 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.

(2) Within 30 calendar 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.

(3) The director may confer with the ADA coordinator or designee and the complainant and may accept or modify the recommendation to resolve the complaint. The director or designee shall render a decision within 10 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 the decision. The director's decision shall be in writing, and shall be delivered to the complainant.

 

R495-878-6. Appeals.

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

(2) The appeal shall be in writing.

(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 appeal the complainant shall describe in sufficient detail why the decision does not effectively address the complainant's needs.

(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 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; or

(b) require facility modifications;

(6) The executive director shall issue a final decision within 15 working days after receiving the complainant's appeal. The decision shall be in writing, and shall be delivered to the complainant.

(7) If the executive director or designee is unable to reach a final decision within the 15 working day period, the complainant shall be notified in writing why the final decision is being delayed and the additional time needed to reach a final decision.

 

R495-878-7. 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.]

R495-878.  Americans with Disabilities Act and Civil Rights Constituent Grievance Procedures.

R495-878-1. Authority and Purpose.

(1) This rule is authorized by Section 62A-1-111.

(2) The purpose of this rule is to provide for the prompt and equitable resolution of constituent complaints alleging any violation of the nondiscrimination provisions of Title VI of the Civil Rights Act of 1964, Title II of the Americans with Disabilities Act of 1990, Section 504 of the Rehabilitation Act of 1973, or the Age Discrimination Act of 1975, by employees of the Department.

 

R495-878-2. Definitions.

(1) "ADA/Civil Rights/LEP Coordinator" means the employee assigned by the executive director to facilitate the prompt and equitable resolution of constituent complaints alleging discrimination by employees of the Department .

(2) "Department" means the Department of Human Services created by Section 62A-1-102, and includes the divisions and offices created by Section 62A-1-105.

(3) "Constituent" means an individual who has applied to receive services, is currently receiving services, or who has received services from the Department, and includes that individual's authorized representative.

(4) "Division Coordinator" means an individual appointed by the executive director to investigate allegations of discrimination by employees of the Department.

(5) "Director" means the head of the division or office of the Department affected by a complaint filed under this rule.

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

 

R495-878-3. Filing of Complaints.

(1) A constituent may file a complaint alleging the violation of the nondiscrimination provisions of Title VI of the Civil Rights Act of 1964, Title II of the Americans with Disabilities Act of 1990, Section 504 of the Rehabilitation Act of 1973, or the Age Discrimination Act of 1975, by employees of the Department.

(2) A constituent shall file a complaint with the Department's ADA/Civil Rights/LEP Coordinator, unless the complaint includes allegations against the ADA/Civil Rights/LEP Coordinator, in which case the complaint shall be filed with the executive director.

(3) A constituent may file a written, oral, or electronic complaint to:

ADA/Civil Rights/LEP Coordinator

Department of Human Services

Executive Directors Office-4th floor

195 North 1950 West

Salt Lake City, Utah 84116; or

dhscivilrightscomplaint@utah.gov

(4) To facilitate a thorough investigation, the constituent should file a written, oral, or electronic complaint with the Department ADA/Civil Rights/LEP Coordinator no later than 30 days from the date of the alleged circumstances giving rise to the complaint. A complaint should include the following information (complaint form available online at http://hs.utah.gov/):

(a) A detailed description of the alleged circumstances which caused the complaint, including dates and locations;

(b) The names and contact information of any and all persons involved in those circumstances;

(c) A detailed description of any actions taken by the constituent to address the complaint; and

(d) The desired result or outcome that the constituent is seeking from the Department.

 

R495-878-4. Investigation of Complaints.

(1) Within ten (10) days after receipt of the complaint, the ADA/Civil Rights/LEP Coordinator will assign the investigation of the complaint to the applicable Division Coordinator.

(a) The ADA/Civil Rights/LEP Coordinator will retain a copy of the complaint in a central file and provide deadlines for the Division Coordinator to conclude the investigation of the complaint.

(b) Investigations will generally be completed within 60 days after receipt of the complaint.

(2) Within ten (10) days after receipt of the complaint from the ADA/Civil Rights/LEP Coordinator, the Division Coordinator will notify the constituent in writing or electronically that an investigation of the complaint has commenced and will provide the deadline upon which the constituent should receive correspondence regarding the outcome of the investigation.

(a) The ADA/Civil Rights/LEP Coordinator shall be provided a copy of this correspondence from the Division Coordinator.

(b) A copy of all correspondence will be included in the ADA/Civil Rights/LEP Coordinator's central file.

(3) The Division Coordinator, or designee under the direction of the Division Coordinator, will conduct the investigation into the complaint and draft a proposed response to the complaint.

(a) The Division Coordinator shall gather and document all available relevant information.

(b) If the Division Coordinator is unable to complete the investigation and make a recommendation within the deadline established by the ADA/Civil Rights/LEP Coordinator, the constituent and the ADA/Civil Rights/LEP Coordinator shall be notified of the reason and how much additional time is needed.

 

R495-878-5. Recommendation and Decision.

(1) Completion of the investigation will result in a finding that the alleged circumstances occurred, did not occur, or could not be substantiated.

(a) If the alleged circumstances did occur, then the recommendation will also include suggestions to address barriers in the future involving similar circumstances.

(b) If the alleged circumstances could not be substantiated, but the Division Coordinator is able to identify areas where DHS practices may be improved, then suggestions may be made to address barriers in the future involving similar alleged circumstances.

(c) The Division Coordinator will be responsible for drafting the initial correspondence to the complainant.

(2) The correspondence will be sent by the Division Coordinator to the Director for final approval and mailing to the constituent.

(a) A copy of the correspondence will be sent to the ADA/Civil Rights/LEP Coordinator, and included in a central file.

(3) Within ten (10) business days after the conclusion of the investigation, the Division Coordinator will notify the constituent in writing concerning the outcome of the investigation.

(a) The Division Coordinator will log in the date that the written response is sent to the constituent to indicate that the complaint is completed.

(4) The Director shall take all reasonable steps to implement the recommendation, including the suggestions to ameliorate barriers in the future involving similar circumstances.

(5) Any of the foregoing deadlines may be reasonably extended for extenuating circumstances. Any extensions of time will be confirmed in writing to the constituent.

 

R495-878-6. Appeals.

(1) The constituent may appeal the outcome of the investigation to the Office of Administrative Hearings in accordance with Rule R497-100 Adjudicative Proceedings.

 

KEY: grievance procedures, disabled persons

Date of Enactment or Last Substantive Amendment: [December 27, 2011]2015

Notice of Continuation: January 23, 2012

Authorizing, and Implemented or Interpreted Law: 62A-1-111; 63G-3-201(3); 28 CFR 35.107