DAR File No. 42914

Education, Administration

Rule R277-104

ADA Complaint Procedure

Notice of Proposed Rule

(Amendment)

DAR File No.: 42914
Filed: 05/14/2018 03:23:37 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

This rule is being amended to provide technical, conforming, and stylistic changes in accordance with the Rulewriting Manual for Utah and Board of Education policies.

Summary of the rule or change:

These rule changes provide technical, conforming, and stylistic changes in accordance with the Rulewriting Manual for Utah and Board policies. Under these rule change, complaints are filed with the Superintendent rather than the Americans with Disabilities Act (ADA) Coordinator, although the Superintendent may receive investigative assistance from Board staff and others as designated in this rule.

Statutory or constitutional authorization for this rule:

• Section R477-8-15
• 28 CFR 35.107
• Title II of the Americans with Disabilities Act

Anticipated cost or savings to:

the state budget:

There is no aggregate anticipated cost or savings to the state budget because this rule deals with ADA complaint procedures for individuals with disabilities submitting a claim to the Superintendent of the Utah State Board of Education (USBE).

local governments:

There is no aggregate anticipated cost or savings to local governments because this rule deals with ADA complaint procedures for individuals with disabilities submitting a claim to the Superintendent of the USBE.

small businesses:

There is no aggregate anticipated cost or savings to small businesses because this rule deals with ADA complaint procedures for individuals with disabilities submitting a claim to the Superintendent of the USBE.

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

There is no aggregate anticipated cost or savings to persons other than small businesses, businesses, or local government entities because this rule deals with ADA complaint procedures for individuals with disabilities submitting a claim to the Superintendent of the USBE.

Compliance costs for affected persons:

There are no compliance costs for affected persons.

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

These changes to Rule R277-104 are not estimated to have a fiscal impact on businesses. There are 1,241 entities with a NAICS code 611110 operating in Utah according to a "Firm Find Data" search through Utah's Department of Workforce Services. Most of the entities in the list are public entities e.g. Alpine Board of Education, Canyons School District, Cache High School, etc. These proposed rule changes are not expected to have any fiscal impact on large businesses' revenues or expenditures because it deals with ADA complaint procedures for individuals with disabilities submitting a claim to the Superintendent of the USBE. These rule changes do not require any expenditures of or generate any revenues for large businesses. This rule was due for its five-year review and continuation. The USBE has reviewed this rule and determined that it continues to be necessary. These rule changes provide technical, conforming, and stylistic changes in accordance with the Rulewriting Manual for Utah and Board policies. Under these rule changes, complaints are filed with the Superintendent rather than the ADA Coordinator although the Superintendent may receive investigative assistance from Board staff and others as designated in this rule. The process, requirements, and timeline for filing complaints remain the same. Thus, this rule is not expected to have a fiscal impact on local education agencies either. The Assistant Superintendent of Financial Operations at the Utah State Board of Education, Natalie Grange, has reviewed and approved this fiscal analysis.

Sydnee Dickson, State Superintendent

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

Education
Administration
250 E 500 S
SALT LAKE CITY, UT 84111-3272

Direct questions regarding this rule to:

• Angela Stallings at the above address, by phone at 801-538-7550, by FAX at 801-538-7768, or by Internet E-mail at [email protected]

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:

07/02/2018

This rule may become effective on:

07/09/2018

Authorized by:

Angela Stallings, Deputy Superintendent of Policy

Appendix 1: Regulatory Impact Summary Table*

Fiscal Costs	FY 2018	FY 2019	FY 2020
State Government	$0	$0	$0
Local Government	$0	$0	$0
Small Businesses	$0	$0	$0
Non-Small Businesses	$0	$0	$0
Other Person	$0	$0	$0
Total Fiscal Costs:	$0	$0	$0
Fiscal Benefits
State Government	$0	$0	$0
Local Government	$0	$0	$0
Small Businesses	$0	$0	$0
Non-Small Businesses	$0	$0	$0
Other Persons	$0	$0	$0
Total Fiscal Benefits:	$0	$0	$0
Net Fiscal Benefits:	$0	$0	$0

 

*This table only includes fiscal impacts that could be measured. If there are inestimable fiscal impacts, they will not be included in this table. Inestimable impacts for State Government, Local Government, Small Businesses and Other Persons are described above. Inestimable impacts for Non - Small Businesses are described below.

 

Appendix 2: Regulatory Impact to Non - Small Businesses

This change to Rule R277-104 is not estimated to have a fiscal impact. There are 1,241 entities with a NAICS code 611110 operating in Utah according to a "Firm Find Data" search through Utah's Department of Workforce Services. Most of the entities in the list are public entities e.g. Alpine Board of Education, Canyons School District, Cache High School, etc. These proposed rule changes are not expected to have any fiscal impact on large businesses' revenues or expenditures because it deals with ADA complaint procedures for individuals with disabilities submitting a claim to the Superintendent of the Utah State Board of Education (USBE). This rule change does not require any expenditures of or generate any revenues for large businesses.

 

This rule was due for its five-year review and continuation. The Utah State Board of Education has reviewed this rule and determined that it continues to be necessary. The rule changes provide technical, conforming, and stylistic changes in accordance with the Rulewriting Manual for Utah and Board policies. Under these rule changes, complaints are filed with the Superintendent rather than the ADA Coordinator although the Superintendent may receive investigative assistance from Board staff and others as designated in the rule.The process, requirements, and timeline for filing complaints remain the same. Thus, this rule is not expected to have a fiscal impact on local education agencies either.

 

The Assistant Superintendent of Financial Operations at the Utah State Board of Education, Natalie Grange, has reviewed and approved this fiscal analysis.

 

 

R277. Education, Administration.

R277-104. ADA Complaint Procedure.

R277-104-[2]1. Authority and Purpose.

[A.](1) 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.](2)(a) The purpose of this rule is to establish [USOE and USOR ]procedures for [non-USOE, non-USOR and non-Board employees]individuals to file complaints under the [federal ]ADA [law ]and to provide appropriate classification of the records of complaints and appeals.

(b) A complaint filed by an employee of the Board is not subject to this rule, but is governed by Section R477-8-15.

[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-[1]2. Definitions.

[A.](1) "ADA" means the Americans with Disabilities Act, 42 U.S.C. 12201, including the ADA Amendments Act of 2008, Pub. L. No. 110-325, 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.](2) "Days" means calendar days.

[D.](3) "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]as defined in the [Americans with Disabilities Act, 42 U.S.C. 12201]ADA.

[E. "Executive Director" means the Executive Director of the Utah State Office of Rehabilitation.]

[F.](4) "Major life activities" mean[s] functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.

[G.](5) "Individual with a disability" [(hereinafter individual)]or "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.]

 

R277-104-3. Statement of Non-Discrimination.

The Superintendent shall comply with the ADA in administering the services, programs, and activities of the Board.

 

R277-104-[3]4. 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.](1) An individual may file a complaint by submitting a claim with the Superintendent no later than 30 days from the date of the alleged act of discrimination.

(2) A complaint under Subsection (1) shall be made in writing or in another format reasonable for the individual and the Superintendent.

[C.](3) Each complaint shall include:

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

([2]b) [include]a description of the nature and extent of the individual's disability;

([3]c) [describe the USOE's or USOR's ]a description of the alleged discriminatory action in sufficient detail to inform the [USOE or USOR]ADA Coordinator of the nature and date of the alleged violation;

([4]d) [describe]a description of the action [and]or accommodation [desired]needed; and

([5]e) [be signed by]the signature of the individual or [by his]the individual's legal representative.

 

R277-104-[4]5. [Investigation of]Action on 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.](1) The Superintendent shall investigate each complaint to the extent necessary to assure all relevant facts are determined and documented.

(2) The Superintendent may receive investigative assistance from:

(a) the Attorney General's office;

(b) the Department of Human Resource Management;

(c) State Risk Management; and

(d) Board staff.

(3)(a) The Superintendent shall notify a claimant of the Superintendent's decision in writing within 30 days of receiving a Complaint.

(b) If additional time is necessary to reasonably investigate a complaint, the Superintendent shall notify the Claimant in writing of:

(i) the reasons for the delay; and

(ii) a date certain by which a decision will be provided.

(4) Unless the claimant files a request for reconsideration under Section R277-104-6, the decision of the Superintendent is the final agency action.

 

[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.] R277-104-6. Reconsideration.

(1) A claimant may file a request with the Superintendent to review a decision under Subsection R277-104-5(3) within ten days of the date of the Superintendent's decision.

(2) A request for reconsideration under Subsection (1) shall outline any error alleged in the Superintendent's decision, which warrants reconsideration of the Superintendent's proposed action.

(3) Following a request for reconsideration, the Superintendent may conduct additional investigation, if warranted.

(4) The Superintendent shall issue a final decision in writing within 30 days of a request for reconsideration under Subsection (1), which action shall be the final agency action.

 

R277-104-7. Classification of Records.

[A.](1) 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]Superintendent's action is final.

[B.](2) The Superintendent shall classify [Any]any portion[s] of [the]a record which pertain to an individual's medical condition [shall remain classified ]as private, [as defined under]in accordance with S ubsection 63G-2-302 (1)(b), or controlled, [as defined in]in accordance with Section 63G-2-304.[All other information gathered as part of the complaint record shall be classified as protected information].

[C.](3) The final written decision of the Superintendent shall be public [information], subject to the provisions of Title 63G, Chapter 2, Government Records Access and Management Act.

 

R277-104-8. Relationship to Other Laws.

(1) This rule does not prohibit or limit the use of remedies available to [the]an individual[s] under :

(a) Section 67-19-32;

(b) [the Federal ADA Complaint Procedures (]28 CFR , Subpart F, Complaint Procedures[beginning with Part 35.170, 1992 edition)]; or

(c) 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: [June 7, 2012]2018

Notice of Continuation: May 15, 2013

Authorizing, and Implemented or Interpreted Law: 28 CFR 35.107