No. 30170 (Repeal): R477-100. Americans With Disabilities Act (ADA) Complaint Procedure

DAR File No.: 30170
Filed: 07/03/2007, 11:51
Received by: NL

RULE ANALYSIS

Purpose of the rule or reason for the change:

This rule is redundant and no longer necessary. This rule was made effective in 1991 coincident with the implementation of the federal Americans with Disabilities Act, 42 USC 12201 (ADA). The intent of the rule was to define a procedure for employees in the Department of Human Resource Management (DHRM) to grieve perceived violations of the ADA. At that time, there were no recognized procedures to grieve and this rule filled that void. In the ensuing years, DHRM rules have been amended to provide an employee with three options to file a discrimination complaint (see Section R477-2-3). An employee may file a complaint through the established state grievance procedures defined in Title 67, Chapter 19a; with the Utah Anti-Discrimination and Labor Division; or directly with the Equal Employment Opportunity Commission. The processes of these three options are far more familiar to managers and Human Resource professionals, whereas the process in this rule is virtually unknown and never used.

Summary of the rule or change:

The requirements of this rule are contained in other sections of DHRM rules. This rule is repealed in its entirety.

State statutory or constitutional authorization for this rule:

Subsection 63-46a-3(2)

Anticipated cost or savings to:

the state budget:

This rule is never used by employees in DHRM who file ADA grievances. Instead they always use the better known processes provided in Section R477-2-3 as mentioned in the "purpose of the change" above. Repealing this rule will have no impact on the number of employees who may file a grievance or the number of grievances they may file. There will therefore be no budget impact on the department.

local governments:

This rule only affects the state DHRM and will have no impact on local governments.

other persons:

This rule only affects the state DHRM and will have no impact on other persons.

Compliance costs for affected persons:

This rule only affects the state DHRM.

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

Rules published by DHRM have no direct effect on businesses or any entity outside state government. DHRM has authority to write rules only to the extent allowed by the Utah Personnel Management Act, Title 67, Chapter 19. This act limits the provisions of career service and these rules to employees of the executive branch of state government. The only possible impact may be a very slight, indirect effect if an agency passes costs or saving on to business through fees. However, it is anticipated that the minimal costs associated with these changes will be absorbed by agency budgets and will have no effect on business. Jeff Herring, Executive Director

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

Human Resource Management
Administration
Room 2120 STATE OFFICE BLDG
450 N MAIN ST
SALT LAKE CITY UT 84114-1201

Direct questions regarding this rule to:

Lyle Almond at the above address, by phone at 801-538-3391, by FAX at 801538-3081, 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:

08/31/2007

This rule may become effective on:

09/07/2007

Authorized by:

Jeff Herring, Executive Director

RULE TEXT

R477. Human Resource Management, Administration.

[R477-100. Americans With Disabilities Act (ADA) Complaint Procedure.

R477-100-1. Authority and Purpose.

This rule applies only to DHRM. Agencies shall adopt, define and publish their own rules pursuant to the Americans with Disabilities Act (ADA). The Department of Human Resource Management, pursuant to 28 CFR 35.107, 1991 edition, adopts, defines, and publishes within this rule, complaint procedures providing for prompt and equitable resolution of complaints filed in accordance with Title II of the Americans With Disabilities Act.

The provision of 28 CFR 35, 1991 edition implements the provisions of Title II of the Americans With Disabilities Act, 42 USC 12201, 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 the Department, or be subjected to discrimination by this or any such entity.

 

R477-100-2. Definitions.

"The ADA Coordinator" means the Department of Human Resource Management's coordinator or his designee who has responsibility for investigating and providing prompt and equitable resolution of complaints filed by qualified individuals with disabilities.

100-2.(1) "The ADA State Coordinating Committee" means that committee with representatives designated by the directors of the following agencies:

(1) Office of Planning and Budget;

(2) Department of Human Resource Management;

(3) Division of Risk Management;

(4) Division of Facilities Construction Management; and

(5) Office of the Attorney General.

100-2.(2) "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.

100-2.(3) "Major life activities" means functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.

100-2.(4) "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, or who would otherwise be an eligible applicant for vacant state positions, as well as those who are employees of the state.

100-2.(5) "Department" means the Department of Human Resource Management, divisions and units therein.

 

R477-100-3. Filing of Complaints.

The complaint shall be filed in a timely manner to assure prompt, effective assessment and consideration of the facts, but no later than 180 days from the date of the alleged act of discrimination. However, any complaint alleging an act of discrimination occurring between January 26, 1992 and the effective date of this rule may be filed within 180 days of the effective date of this rule.

100-3.(1) The complaint shall be filed with the Department's ADA Coordinator in writing or in another accessible format suitable to the individual.

Each complaint shall:

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

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

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

(4) describe the action and accommodation desired; and

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

100-3.(2) Complaints filed on behalf of classes or third parties shall describe or identify by name, if possible, the alleged victims of discrimination.

 

R477-100-4. Investigation of Complaint.

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.

100-4.(1) When conducting the investigation, the coordinator may seek assistance from the Department's legal, human resource and budget staff in determining what action, if any, shall be taken on the complaint. Before making any decision that would involve:

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

(2) facility modifications; or

(3) reclassification or reallocation in a salary range; the coordinator shall consult with the ADA State Coordinating Committee.

 

R477-100-5. Issuance of Decision.

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

100-5.(1) If the coordinator is unable to reach a decision within the 15 working day period, he 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.

 

R477-100-6. Appeals.

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

100-6.(1) The appeal shall be filed in writing with the Department's executive director or a designee other than the Department's ADA Coordinator.

100-6.(2) The filing of an appeal shall be considered as authorization by the individual to allow review of all information, including information classified as private or controlled, by the Department's executive director or designee.

100-6.(3) 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.

100-6.(4) The executive director 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 any decision that would involve the executive director or designee to:

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

(2) facility modifications; or

(3) reclassification or reallocation in a salary range; he shall also consult with the State ADA Coordinating Committee.

100-6.(5) 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.

100-6.(6) If the executive director is unable to reach a decision within the ten working day period, he shall notify the individual in writing or by another acceptable or suitable format why the decision is being delayed and the additional time needed to reach a decision.

 

R477-100-7. 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 ADA coordinator, executive director 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. Only the written decision of the coordinator, executive director or designees shall be classified as public information.

 

R477-100-8. 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 35, Subpart F, beginning with Part 35.107, 1991 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, physically handicapped, grievance

Date of Enactment or Last Substantive Amendment: 1994

Notice of Continuation: September 4, 2002

Authorizing, and Implemented or Interpreted Law: 63-46a-3(2)]