No. 34853 (Repeal): Rule R251-112. Americans With Disabilities Act Implementation and Complaint Process

(Repeal)

DAR File No.: 34853
Filed: 05/19/2011 03:38:05 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

The department is filing this rule pursuant to the business impact review. The department is recommending repeal of this rule after consultation with the Department of Human Resource Management (DHRM). All ADA processes are now being addressed through DHRM. DHRM staff indicated the department should no longer have this rule in place.

Summary of the rule or change:

This rule is repealed in its entirety.

State statutory or constitutional authorization for this rule:

• Section 67-19-32
• Sections 34A-5-101 to 35A-5-108

Anticipated cost or savings to:

the state budget:

There will be no cost or savings to the state budget because ADA procedures will still exist; they will be administered by DHRM rather than Corrections.

local governments:

There will be no cost or savings to local governments because ADA procedures will still exist; they will be administered by DHRM rather than Corrections.

small businesses:

There will be no cost or savings to small businesses because ADA procedures will still exist; they will be administered by DHRM rather than Corrections.

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

There will be no cost or savings to other persons because ADA procedures will still exist; they will be administered by DHRM rather than Corrections.

Compliance costs for affected persons:

There will be no compliance costs to affected persons because ADA procedures will still exist; they will be administered by DHRM rather than Corrections.

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

There are no fiscal impacts anticipated on businesses.

Thomas Patterson, Executive Director

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

Corrections
Administration
14717 S MINUTEMAN DR
DRAPER, UT 84020-9549

Direct questions regarding this rule to:

• Michael Haddon at the above address, by phone at 801-545-5913, by FAX at 801-545-5726, 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:

07/15/2011

This rule may become effective on:

08/01/2011

Authorized by:

Thomas Patterson, Executive Director

RULE TEXT

R251. Corrections, Administration.

[R251-112. Americans With Disabilities Act Implementation and Complaint Process.

R251-112-1. Authority and Purpose.

(1) This rule is promulgated pursuant to Section 63-46a-3(2) of the State Administrative Rulemaking Act. As required by 28 CFR 35.107 (1992 ed.), the Department of Corrections, as a public entity that employs more than 50 persons, adopts, defines, and publishes the complaint procedures within this rule for the prompt and equitable resolution of complaints alleging any action prohibited by the applicable provisions of the Americans With Disabilities Act.

(2) The applicable provisions of 29 C.F.R. 1630 implement the Americans With Disabilities Act, 42 U.S.C. 12101 through 12213, which provide that no qualified individual with a disability, by reason of such disability, be denied employment, be excluded from participation in, or be denied the benefits of services, programs, or activities of the Department of Corrections.

 

R251-112-2. Definitions.

(1) "ADA" means Americans With Disabilities Act.

(2) "ADA Coordinator" means the Department designee who has the responsibility for the Department's compliance with ADA.

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

(a) Department of Human Resource Management;

(b) Division of Risk Management;

(c) Division of Facilities Construction Management; and

(d) Office of the Attorney General.

(4) "Department" means the Department of Corrections.

(5) "Disability" means with respect to an individual with a physical or mental impairment that substantially limits one or more major life activities as defined by ADA.

(6) "HRM Representative" means the Director or designee of the Department of Human Resource Management (DHRM) field office within the Department who has responsibility for the Department's compliance with ADA as it relates to employees.

(7) "Qualified person with a disability" means an individual with a disability who meets the skill, experience, education, and other job-related requirements of a position held or desired, and who, with or without reasonable accommodation, is able to perform the essential functions of a job or meets the criteria established for visiting offenders or accessing other programs and services offered.

 

R251-112-3. Filing of Complaints.

(1) Any qualified individual with a disability should file a complaint with the Department no later than 60 days of the alleged act of discrimination in order to expedite resolution of the complaint.

(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 should:

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

(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 any accommodation desired; and

(e) be signed by the individual or by the individual's representative.

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

 

R251-112-4. Investigation of Complaint.

(1) The ADA Coordinator or designee and the HRM representative shall use reasonable diligence to investigate complaints received and obtain and document all relevant facts. This may include gathering all information listed in Section R251-112-3(3), if it is not made available by the individual.

(2) When conducting the investigation, the ADA Coordinator or designee may seek assistance from the Department's legal, human resource, budget staff and division directors in determining what action, if any, shall be taken on the complaint. The ADA Coordinator or designee may also consult with the Executive Director in reaching a recommendation.

(3) The ADA Coordinator or designee and the DHRM representative shall consult with the ADA State Coordinating Committee before making any decision that would involve:

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

(b) facility modifications which require an expenditure of funds which is not absorbable within the Department's budget and would require appropriation authority; or

(c) reclassification or reallocation in grade.

 

R251-112-5. Issuance of Decision.

(1) Within 30 working days after receiving the complaint, the ADA Coordinator or designee or the DHRM representative or designee shall issue a decision outlining in writing or in another accessible format suitable to the individual stating what action, if any, shall be taken on the complaint.

(2) If the ADA Coordinator or designee or the DHRM representative or designee is unable to reach a decision within the 30 working day period, the ADA Coordinator or the DHRM representative or designee shall notify the individual in writing, or by another accessible format suitable to the individual, why the decision is being delayed and what additional time is needed to reach a decision.

 

R251-112-6. Appeals.

(1) The individual may appeal the decision of the ADA Coordinator or designee or the DHRM representative or designee by filing an appeal within ten working days from the receipt of the decision.

(2) The appeal shall be filed in writing or another accessible format suitable to the individual with the Executive Director of the Department. The Executive Director may name a designee other than the ADA Coordinator to assist on the appeal.

(3) The appeal shall describe in sufficient detail why the ADA Coordinator's decision does not meet the individual's needs without undue hardship to the Department, is incomplete or ambiguous, is not supported by the evidence, or is otherwise improper.

(4) The Executive Director or designee shall review the decision and the appeal. The Executive Director may direct additional investigation as necessary before arriving at an independent conclusion.

(5) The Executive Director or designee may consult with the State ADA Coordinating Committee prior to making any decision that would involve:

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

(b) facility modifications; or

(c) reclassification or reallocation in grade;

(6) The decision shall be issued within ten working days after receiving the appeal and shall be in writing or in another accessible format suitable 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 shall notify the individual in writing or by another accessible format suitable to the individual why the decision is being delayed and the additional time needed to reach a decision.

 

R251-112-7. Classification of Records.

The record of each complaint and appeal, and all written records produced or received as part of such actions, shall be classified as protected as defined under Section 63-2-304, until the Executive Director, ADA Coordinator, DHRM representative, or their designees issue the decision at which time any portions of the record which may pertain to the individual's medical condition shall remain classified as private as defined under Section 63-2-302, or controlled as defined in Section 63-2-303. All other information gathered as part of the complaint record shall be classified as private information.

 

R251-112-8. Relationship to Other Laws.

This rule does not prohibit or limit the use of remedies available to individuals under the Utah State Anti-Discrimination Complaint Procedures; the Federal Americans with Disabilities Act Complaint Procedures; or any other Utah State or federal law that provides equal or greater protection for the rights of individuals with disabilities.

 

KEY: complaint procedures, disabled persons

Date of Enactment or Last Substantive Amendment: March 11, 2008

Notice of Continuation: November 13, 2007

Authorizing, and Implemented or Interpreted Law: 67-19-32; 34A-5-101 to 34A-5-108; 63-46a-3(2)]

 

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