DAR File No. 39480

Human Services, Administration

Rule R495-878

Americans With Disabilities Act Grievance Procedures

Notice of Proposed Rule

(Amendment)

DAR File No.: 39480
Filed: 06/30/2015 10:37:41 AM

RULE ANALYSIS

Purpose of the rule or reason for the change:

Changes are needed to provide an appeal process and clarify the rule. This will better inform the public of process and increase accountability.

Summary of the rule or change:

The rule changes will clarify terminology, add a TTY phone number, and provide a more definitive time frame for investigations to be completed and provide a clear appeal process.

State statutory or constitutional authorization for this rule:

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

Anticipated cost or savings to:

the state budget:

This rule will clarify procedure and time frames, 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 clarify procedure and time frames, but will not require any additional staff or resources and will not have any fiscal impact on the local government.

small businesses:

This rule will clarify procedure and time frames, but will not require any additional staff or resources and will not have any fiscal impact on the small businesses.

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

This rule will clarify procedure and time frames, but will not require any additional staff or resources and will not have any fiscal impact on the grievance procedure.

Compliance costs for affected persons:

This rule will clarify procedure and time frames, 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 amendment will have no fiscal impact on businesses.

Ann Williamson, Executive Director DHS

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:

08/14/2015

This rule may become effective on:

08/21/2015

Authorized by:

Ann Williamson, Executive Director

R495. Human Services, Administration.

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" means Title II of the Americans with Disabilities Act of 1990.

(2) "ADA/Civil Rights/LEP/Section 504 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]Complainant" means an individual who has applied to receive services, is currently receiving services, or who has received services from the Department, [and includes]or that individual's authorized representative.

(4) "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.

([4]5) "Division Coordinator" means an individual [appointed]assigned by the executive director to investigate allegations of discrimination by employees of the Department.

([5]6) "Director" means the head of the division or office of the Department affected by a complaint filed under this rule.

([6]7) "Executive Director" means the executive director of the department.

(8) "LEP" means Limited English Proficiency.

(9) "Section 504" means Section 504 of the Rehabilitation Act of 1973.

 

R495-878-3. Filing of Complaints.

(1) A [constituent]complainant 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]complainant shall file a complaint with the Department's ADA/Civil Rights/LEP/Section 504 Coordinator, unless the complaint includes allegations against the ADA/Civil Rights/LEP/Section 504 Coordinator, in which case the complaint shall be filed with the executive director.

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

ADA/Civil Rights/LEP/Section 504 Coordinator

Department of Human Services

Executive Directors Office-4th floor

195 North 1950 West

Salt Lake City, Utah 84116; or

dhscivilrightscomplaint@utah.gov; or

(801) 538-4187 (TTY) or Utah Relay 711.

(4) To facilitate a thorough investigation, the [constituent]complainant should file a written, oral, or electronic complaint with the Department ADA/Civil Rights/LEP/Section 504 Coordinator no later than thirty (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]complainant to address the complaint; and

(d) The desired result or outcome that the [constituent]complainant 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/Section 504 Coordinator will assign the investigation of the complaint to the applicable Division Coordinator.

(a) The ADA/Civil Rights/LEP/Section 504 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]shall be completed within sixty (60) days after receipt of the complaint by the applicable Division Coordinator.

(2) Within ten (10) days after receipt of the complaint from the ADA/Civil Rights/LEP/Section 504 Coordinator, the Division Coordinator will notify the [constituent]complainant in writing or electronically that an investigation of the complaint has commenced and will provide the deadline upon which the [constituent]complainant should receive correspondence regarding the outcome of the investigation.

(a) The ADA/Civil Rights/LEP/Section 504 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/Section 504 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]complainant and the ADA/Civil Rights/LEP/Section 504 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]decision 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]complainant.

(a) A copy of the correspondence will be sent to the ADA/Civil Rights/LEP/Section 504 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]complainant 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]complainant 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]complainant.

 

R495-878-6. Appeals.

(1) The [constituent]complainant may appeal the [outcome ]Director's decision to the Executive Director within ten working days after the complainant's receipt of the Director's decision.[of the investigation to the Office of Administrative Hearings in accordance with Rule R497-100 Adjudicative Proceedings.]

(2) The appeal shall be in writing.

(3) The Executive Director may name a designee to assist on the appeal. The ADA/Civil Rights/LEP/Section 504 Coordinator, Division Coordinator, Director, and Director's designee may not 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 Division Coordinator's recommendation, the Director's decision, and the points raised on appeal prior to reaching a decision. The Executive Director or designee may direct additional investigation as necessary. The Executive Director shall consult with representatives from other state agencies that may be affected by the decision, including the Office of Management 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 or designee 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 civil rights of individuals, including but not limited to Title VI of the Civil Rights Act of 1964, the Age Discrimination Act of 1975, and Section 504 of the Rehabilitation Act of 1973

 

KEY: grievance procedures, disabled persons

Date of Enactment or Last Substantive Amendment: 2015

Notice of Continuation: January 23, 2012

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