No. 34681 (Amendment): Rule R895-2. Americans with Disabilities Act (ADA) Complaint Procedure

(Amendment)

DAR File No.: 34681
Filed: 04/12/2011 02:01:13 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

The purpose of the rule is to establish a procedure to provide for resolution of complaints filed in accordance with the ADA. The ADA State Coordinating Committee is a defunct committee. The change in the rule has removed reference to this committee. Additionally, the rule has been amended to include revisions to the Americans with Disabilities Act Amendments Act of 2008 (ADAAA).

Summary of the rule or change:

The ADA State Coordinating Committee is a defunct committee. The change in the rule has removed reference to this committee. Additionally, the rule has been amended to include revisions to the ADAAA.

State statutory or constitutional authorization for this rule:

• Section 63G-3-201
• Section 63F-1-206

Anticipated cost or savings to:

the state budget:

There is no impact to the state budget, as the change just removes reference to a committee that is no longer operational. There is no impact to the operational procedure for filing ADA complaints.

local governments:

There is no impact to local governments, as the change just removes reference to a committee that is no longer operational. There is no impact to the operational procedure for filing ADA complaints.

small businesses:

There is no impact to small businesses, as the change just removes reference to a committee that is no longer operational. There is no impact to the operational procedure for filing ADA complaints.

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

There is no impact to other persons, as the change just removes reference to a committee that is no longer operational. There is no impact to the operational procedure for filing ADA complaints.

Compliance costs for affected persons:

There is no compliance cost for affected persons, as the change just removes reference to a committee that is no longer operational. There is no impact to the operational procedure for filing ADA complaints.

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

The modification to the rule will have no fiscal impact to businesses.

J. Stephen Fletcher, CIO

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

Technology Services
Administration
450 N STATE ST
SALT LAKE CITY, UT 84114

Direct questions regarding this rule to:

• Stephanie Weiss at the above address, by phone at 801-538-3284, by FAX at 801-538-3622, or by Internet E-mail at [e-mail]

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:

05/31/2011

This rule may become effective on:

06/07/2011

Authorized by:

J Stephen Fletcher, CIO and Executive Director

RULE TEXT

R895. Technology Services, Administration.

R895-2. Americans With Disabilities Act (ADA) Complaint Procedure.

R895-2-2. Definitions.

(1) "Department" mean the Utah Department of Technology Services.

(2) "Department ADA Coordinator" means an individual, appointed by the executive director of the Department of Technology Services', 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.

[ (3) "The ADA State Coordinating Committee" means that committee with representatives designated by the directors of the following agencies:

(a) Governor's Office of Planning and Budget;

(b) Department of Human Resource Management;

(c) Division of Risk Management;

(d) Division of Facilities Construction Management; and

(e) Office of the Attorney General.

] ([4]3) "Disability" 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.

([5]4) "Major life activities" [means functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working]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 a major bodily function, such as functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.

([6]5) "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 Department of Technology Services, or who would otherwise be an eligible applicant for vacant state positions, as well as those who are employees of the state.

 

R895-2-4. Investigation of Complaint.

(1) 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 Subsection 3(3) of this rule if it is not made available by the individual.

(2) When conducting the investigation, the coordinator may seek assistance from the department's legal, human resource and administrative services staff in determining what action, if any, shall be taken on the complaint. Before making any decision that would involve:

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

(b) facility modifications; or

(c) reclassification or reallocation in grade[; the coordinator shall consult with the ADA State Coordinating Committee].

 

R895-2-6. Appeals.

(1) The individual may appeal the decision of the ADA Coordinator by filing an appeal within five working days from the receipt of the decision.

(2) The appeal shall be filed in writing with the department's executive director or a designee other than the department's ADA Coordinator.

(3) The filing of an appeal shall be considered as authorization by the individual to allow review of all information classified as private or controlled, by the department's executive director or designee.

(4) 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.

(5) The executive director or designee 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 a decision that would involve the executive director or designee to:

(a) an expenditure of funds which is not absorbable and would require appropriation authority;

(b) facility modifications; or

(c) reclassification or reallocation in grade[; the executive director or designee shall also consult with the State ADA Coordinating Committee].

(6) 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.

(7) If the executive director or designee is unable to reach a decision within the ten working day period, the executive director or designee 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.

 

KEY: developmentally disabled, disabilities act

Date of Enactment or Last Substantive Amendment: [July 25, 2006]2011

Notice of Continuation: February 15, 2011

Authorizing, and Implemented or Interpreted Law: 63G-3-201; 63F-1-206

 

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