No. 28744 (New Rule): R895-2. Americans With Disabilities Act (ADA) Complaint Procedure

DAR File No.: 28744
Filed: 05/18/2006, 11:03
Received by: NL

 

RULE ANALYSIS

Purpose of the rule or reason for the change:

The department is developing rules required and/or authorized by the Utah Technology Governance Act (Section 63F-1-101, et seq.) and/or the Utah Administrative Rulemaking Act (Section 63-46a-1, et seq.). The department has determined that a rule defining the process for handling complaints filed in accordance with Title II of the Americans With Disabilities Act (ADA) is necessary and will better serve customers.

 

Summary of the rule or change:

This proposed new rule lists criteria for a process that provides for the prompt and equitable resolution of complaints filed in accordance with Title II.

 

State statutory or constitutional authorization for this rule:

Section 63-46a-3 and 28 CFR 35.107

 

Anticipated cost or savings to:

the state budget:

This rule itself will not result in an increase cost or savings to the state. Any costs to the department for work performed by the department's ADA Coordinator will be allocated to the department's administrative operations budget.

 

local governments:

None--The investigation and resolution of ADA complaints are under the jurisdiction of the State of Utah and the federal government. Therefore, this rule will not affect local government and it is anticipated that there will be no costs or savings to local government.

 

other persons:

None--This rule does not directly impose costs or savings to others. The investigation and resolution of Americans with Disabilities Act complaints are currently addressed by the ADA State Coordinating Committee and/or the federal government. It is anticipated that any costs to the ADA State Coordinating Committee and/or the federal government for work performed will be allocated to the committee's administrative operations budget and/or the federal government's administrative operations budget.

 

Compliance costs for affected persons:

This rule will neither increase nor decrease the cost for filing an ADA complaint with the department, the ADA State Coordinating Committee and/or the federal government.

 

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

This rule has no fiscal impact on business. J. Stephen Fletcher, CIO/Executive Director

 

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

Technology Services
Administration
Room 6000 STATE OFFICE BUILDING
450 N MAIN ST
SALT LAKE CITY UT 84114

 

Direct questions regarding this rule to:

Randy Hughes or William Shiflett at the above address, by phone at 801-537-9071 or 801-538-3548, by FAX at 801-538-1547 or 801-538-9787, or by Internet E-mail at [e-mail] or [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:

07/17/2006

 

This rule may become effective on:

07/25/2006

 

Authorized by:

J Stephen Fletcher, CIO and Executive Director

 

 

RULE TEXT

R895. Technology Services, Administration.

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

R895-2-1. Authority and Purpose.

(1) This rule is promulgated pursuant to Section 63-46a-3 of the State Administrative Rulemaking Act. The Department of Technology Services hereby adopts and defines a complaint procedure to provide for prompt and equitable resolution of complaints filed in accordance with Title II of the Americans With Disabilities Act, pursuant to 28 CFR 35.107, 1992 edition.

(2) 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 this department, or be subjected to discrimination by this department.

 

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) "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) "Major life activities" means functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.

(6) "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.

 

R895-2-3. Filing of Complaints.

(1) The complaint shall be filed in a timely manner to assure prompt, effective assessment and consideration of the facts, but no later than 60 days from the date of the alleged act of discrimination. However, any complaint alleging an act of discrimination occurring between March 8, 2006 and the effective date of this rule may be filed within 60 days of the effective date of this rule.

(2) The complaint shall be filed with the department's ADA Coordinator in writing or in another accessible format suitable to the individual.

(3) Each complaint shall:

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

(b) include the nature and extent of the individual's disability;

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

(d) describe the action and accommodation desired; and

(e) be signed by the individual or by his or her legal representative.

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

 

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.

 

R895-2-5. Issuance of Decision.

(1) Within 15 working days after receiving the complaint, the ADA Coordinator shall issue a decision outlining in writing or another acceptable suitable format stating what action, if any, shall be taken on the complaint.

(2) If the coordinator is unable to reach a decision within the 15 working day period, the coordinator 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.

 

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.

 

R895-2-7. Relationship to Other Laws.

This rule does not prohibit or limit the use of remedies available to individuals under the State Anti-Discrimination Complaint Procedures Section (67-19-32); the Federal ADA Complaint Procedures (28 CFR 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: developmentally disabled, disabilities act

Date of Enactment or Last Substantive Amendment: 2006

Authorizing, and Implemented or Interpreted Law: 63-46a-3; 63F-1-206