No. 35178 (Repeal and Reenact): Rule R495-878. Department of Human Services Civil Rights Complaint Procedure

(Repeal and Reenact)

DAR File No.: 35178
Filed: 08/23/2011 11:27:17 AM

RULE ANALYSIS

Purpose of the rule or reason for the change:

The purpose of this rule is to implement the provisions of 28 CFR 35 which in turn implements Title II of the Americans with Disabilities Act, which provides that no individual be discriminated against because of a disability.

Summary of the rule or change:

The previous rule refers to the "State ADA Coordinating Committee" in dealing with Civil Rights Complaints. This committee no longer exists and is not a part of the process. Also, there is no longer a Civil Rights Coordinator through the Bureau of Administrative Support. The new rule defines the ADA Coordinator to be assigned by the executive director and is not restricted to a certain person. Definitions were expanded through the Code of Federal Regulations in the new rule. References to offices, addresses, codes, and citations were changed.

State statutory or constitutional authorization for this rule:

• Section 62A-1-111
• Subsection 63G-3-201(3)
• 28 CFR 35.107

Anticipated cost or savings to:

the state budget:

The changes in the rule are only informational, they do not impact the state budget and do not create additional cost or savings to the current procedure.

local governments:

The changes to this rule are only informational and update names and procedures. This will not impact local government. This rule only applies to grievances within Human Services with the State of Utah.

small businesses:

The changes to this rule are informational and update the procedures to file a grievance with Human Services in the State of Utah. This will not affect small businesses.

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

The changes to this rule are informational and update the procedures to file a grievance with Human Services in the State of Utah. This will have no impact on other persons or other local government entities.

Compliance costs for affected persons:

The changes to this rule are procedural changes to file a grievance with Human Services. This will not have a fiscal impact on affected persons.

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

The changes in this rule are informational and update procedures, names and addresses. This will not have a fiscal impact on business.

Palmer DePaulis, Executive Director

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

Human Services
Administration
Room DHS ADMINISTRATIVE OFFICE MULTI STATE OFFICE BUILDING
195 N 1950 W
SALT LAKE CITY, UT 84116

Direct questions regarding this rule to:

• Julene Jones at the above address, by phone at 801-538-4521, by FAX at 801-538-3942, or by Internet E-mail at [e-mail]
• Jodi Patterson at the above address, by phone at 801-538-4143, by FAX at 801-538-4317, 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:

10/17/2011

This rule may become effective on:

10/24/2011

Authorized by:

Palmer DePaulis, Executive Director

RULE TEXT

R495. Human Services, Administration.

[R495-878. Department of Human Services Civil Rights Complaint Procedure.

R495-878-1. Authority and Purpose.

(1) This rule is authorized by Section 62A-1-111 and the Federal Civil Rights statutes and regulations cited below. The Department of Human Services, (Department) adopts, defines, and publishes within this rule complaint procedures that incorporate due process standards and that provide for the prompt and equitable resolution of complaints filed in accordance with the Civil Rights Act of 1964, 45 CFR 80.4(b)(2); the Rehabilitation Act of 1973, 45 CFR 84.7(b); and the Americans with Disabilities Act (ADA), 28 CFR 35.107.

 

R495-878-2. Definitions.

(1) Terms used in this rule with respect to ADA are defined in 28 CFR 35.104.

(2) Terms used in this rule with respect to the Rehabilitation Act of 1973 are defined in 45 CFR 84.3.

(3) Terms used in this rule with respect to the Civil Rights Act of 1964 are defined in 45 CFR 80.13.

(4) "The Civil Rights Coordinator" for the Department is the Director of the Bureau of Administrative Support. The Coordinator has responsibility for investigating and providing prompt and equitable resolution of complaints filed by persons alleging discrimination in the receipt of services due to disabilities, race, color, or national origin.

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

(a) 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.

(6) "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.

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

(8) "Qualified Individual with a disability" (individual) means a person who has a disability which limits one of his or her major life activities and who meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by the Department of Human Services or who would otherwise be an individual with a disability who satisfies the requisite skill, experience, education and other job-related requirements of the employment position.

 

R495-878-3. Filing of Complaints.

(1) An individual shall file the complaint 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.

(2) The complaint may be filed with any division, office or regional office of the Department or directly with the Department's Civil Rights Coordinator. Complaints filed locally and not resolved within five working days are to be forwarded to the Coordinator. The complaint shall be in writing or in another accessible format suitable to the individual and delivered or mailed to:

Coordinator, Civil Rights

Bureau of Administrative Support

120 North 200 West, Room 331

Salt Lake City, Utah 84103

(3) Each complaint shall:

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

(b) include the nature and extent of the individual's disability; (if ADA or Section 504)

(c) describe the Department's alleged discrimination 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.

(5) With or without exhausting the Department's procedures, complainants may also file complaints alleging discrimination in employment and in the delivery of services with:

Office for Civil Rights/Denver

U.S. Department of Education

1244 Speer Boulevard

Cesar E. Chavez Memorial Building

Suite 310

Denver, CO 80204

 

R495-878-4. Investigation of Complaint.

(1) The Coordinator shall conduct an investigation of each complaint received. The Department of Human Resource Management Field Office-Human Services (DHRM) shall assume lead responsibility in conducting investigations for complaints from employees alleging discrimination under Title I of the ADA. DHRM investigations shall be submitted to the Coordinator to issue a decision. The Bureau of Administrative Support shall assume lead responsibility in conducting all other civil rights investigations. Investigations shall be conducted to the extent necessary to assure all relevant facts are determined and documented. This may include gathering all information listed in R495-878-3(3) if it is not made available by the individual.

(2) When conducting the investigation, the Coordinator may seek assistance from other divisions/offices within the Department and the Office of the Attorney General in determining what action, if any, shall be taken on the complaint. The Coordinator shall consult with the State ADA Coordinating Committee before making any decision that would involve:

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

(b) facility modification beyond the Department's capability due to the constraint in item (1) above; or

(d) reclassification or reallocation in merit system grade.

 

R495-878-5. Issuance of Decision.

(1) Within 15 working days after receiving the complaint, the Coordinator 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 Coordinator is unable to reach a decision within the 15 working day period, written notice (or notice in another acceptable format) shall be provided to the complainant explaining the delay and the amount of additional time needed.

 

R495-878-6. Appeals.

(1) The individual may appeal the decision of the 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 Executive Director of the Department of Human Services.

(3) 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 Executive Director or appointed 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 Division Director may also appeal a decision by the Coordinator when the decision is perceived to negatively affect Division operation.

(6) The Executive Director or appointed 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 making any decision that would require;

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

(b) facility modifications beyond the Department's capability to be absorbed within the budget and would require appropriation authority; or

(d) reclassification or reallocation in merit system grade.

(7) The decision shall be issued within 15 working days after receiving the appeal and shall be in writing or in another accessible format suitable to the individual.

(8) If the Executive Director is unable to reach a decision within the fifteen day working period, he shall notify the individual in writing or in another accessible format suitable to the individual why the decision is delayed and the additional amount of time needed to reach a decision.

 

R495-878-7. Classification of Records.

(1) 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 63G-2-305 until the 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 conditions shall remain classified as private as defined under Section 63G-2-302 or controlled as defined in Section 63G-2-304. 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.

 

R495-878-8. Relationship to Other Laws.

(1) This rule does not prohibit or limit the use of remedies available to individuals under the State Anti-Discrimination Complaint Procedures, as found in Section 67-19-32; the Federal ADA Complaint Procedures, as found in 28 CFR 35.170, (1992); the Federal Rehabilitation Act procedures as found in 29 U.S.C. 794; or any other Utah State or Federal law that provides equal or greater protection for the rights of individuals with disabilities.]

R495-878. Americans with Disabilities Act Grievance Procedures.

R495-878-1. Authority and Purpose.

(1) This rule is made under authority of Section 63A-1-111 and Subsection 63G-3-201(3). As required by 28 CFR 35.107, the Utah Department of Human Services, as a public entity that employs more than 50 persons, adopts and publishes the grievance procedures within this rule for the prompt and equitable resolution of complaints alleging any action prohibited by Title II of the Americans with Disabilities Act, as amended.

(2) The purpose of this rule is to implement the provisions of 28 CFR 35 which in turn implements Title II of the Americans with Disabilities Act, which provides that no individual shall 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 the department because of a disability.

 

R495-878-2. Definitions.

(1) "ADA Coordinator" means the employee assigned by the executive director to investigate and facilitate the prompt and equitable resolution of complaints filed by qualified persons with disabilities.

(2) "Department" means the Department of Human Services created by Section 62A-1-102.

(3) "Designee" means an individual appointed by the executive director to investigate allegations of ADA non-compliance in the event the ADA Coordinator is unable or unwilling to conduct an investigation for any reason, including a conflict of interest. A designee does not have to be an employee of the department; however, the designee must have a working knowledge of the responsibilities and obligations required of employers and employees by the ADA.

(4) "Director" means the head of the division of the Department affected by a complaint filed under this rule.

(5) "Disability" is defined in 28 CFR 35.104.

(6) "Executive Director" means the executive director of the department.

(7) "Major life activities" is defined in 28 CFR 35.104.

(8) "Qualified Individual" is defined in 28 CFR 35.104.

 

R495-878-3. Filing of Complaints.

(1) Any qualified individual or their authorized representative may file a complaint alleging noncompliance with Title II of the Americans with Disabilities Act, as amended, or the federal regulations promulgated thereunder.

(2) Qualified individuals or their authorized representatives shall file their complaints with the Department's ADA Coordinator, unless the complaint alleges that the ADA Coordinator was non-compliant, in which case qualified individuals shall file their complaints with the Department's designee.

(3) Qualified individuals or their authorized representatives shall file their complaints within 180 days after the date of the alleged noncompliance to facilitate the prompt and effective consideration of pertinent facts and appropriate remedies; however, the Executive Director has the discretion to direct that the grievance process be utilized to address legitimate complaints filed more than 180 days after alleged noncompliance.

(4) Each complaint shall:

(a) Be in writing and delivered to:

ADA Coordinator

Department of Human Services

195 North 1950 West

Salt Lake City, Utah 84116

(b) Include the complainant's name and address;

(c) Include the nature and extent of the qualified individual's disability;

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

(e) Describe the action and accommodation desired; and

(f) Be signed by the complainant or by his legal representative.

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

 

R495-878-4. Investigation of Complaints.

(1) The ADA coordinator or designee shall investigate complaints to the extent necessary to assure all relevant facts are collected and documented. This may include gathering all information listed in Subsection R495-878-3(4) of this rule if it is not made available by the complainant.

(a) If the ADA Coordinator requires additional information from the complainant to complete the investigation, the ADA Coordinator shall send the complainant a records release form. This form shall be returned within 10 days of notice.

(2) The ADA coordinator or designee may seek assistance from the Attorney General's staff and budget staff in determining what action, if any, should be taken on the complaint. The ADA coordinator or designee may also consult with the director of the affected division in making a recommendation.

(3) The ADA coordinator or designee shall consult with representatives from other state agencies that may be affected by the decision, including the Office of Planning and Budget, the Division of Risk Management, the Division of Facilities Construction Management, and the Office of the Attorney General before making any recommendation that would:

(a) involve an expenditure of funds beyond what is reasonably able to be accommodated within the applicable line item so that it would require a separate appropriation; or

(b) require facility modifications;

 

R495-878-5. Recommendation and Decision.

(1) If the ADA coordinator or designee is unable to make a recommendation within the 15 working day period, the complainant shall be notified in writing, or in another accessible format suitable to the complainant, stating why the recommendation is delayed and what additional time is needed.

(2) Within 30 calendar days after receiving the complaint, the ADA coordinator or designee shall recommend to the director what action, if any, should be taken on the complaint. The recommendation shall be in writing.

(3) The director may confer with the ADA coordinator or designee and the complainant and may accept or modify the recommendation to resolve the complaint. The director or designee shall render a decision within 10 working days after the director's receipt of the recommendation from the ADA coordinator or designee. The director shall take all reasonable steps to implement the decision. The director's decision shall be in writing, and shall be delivered to the complainant.

 

R495-878-6. Appeals.

(1) The complainant may appeal the director's decision to the executive director within ten working days after the complainant's receipt of the director's decision.

(2) The appeal shall be in writing.

(3) The executive director may name a designee to assist on the appeal. The ADA coordinator and the director's designee may not also be the executive director's designee for the appeal.

(4) In the appeal the complainant shall describe in sufficient detail why the decision does not effectively address the complainant's needs.

(5) The executive director or designee shall review the ADA coordinator's recommendation, the director's decision, and the points raised on appeal prior to reaching a decision. The executive director may direct additional investigation as necessary. The executive director shall consult with representatives from other state agencies that would be affected by the decision, including the Office of Planning and Budget, the Division of Risk Management, the Division of Facilities Construction Management, and the Office of the Attorney General before making any decision that would:

(a) involve an expenditure of funds beyond what is reasonably able to be accommodated within the applicable line item so that it would require a separate appropriation; or

(b) require facility modifications;

(6) The executive director shall issue a final decision within 15 working days after receiving the complainant's appeal. The decision shall be in writing, and shall be delivered to the complainant.

(7) If the executive director or designee is unable to reach a final decision within the 15 working day period, the complainant shall be notified in writing why the final decision is being delayed and the additional time needed to reach a final decision.

 

R495-878-7. Relationship to Other Laws.

This rule does not prohibit or limit the use of remedies available to individuals under:

(a) the state Anti-Discrimination Complaint Procedures, Section 34A-5-107, and Section 67-19-32;

(b) the Federal ADA Complaint Procedures, 28 CFR 35.170 through 28 CFR 35.178; or

(c) any other Utah State or federal law that provides equal or greater protection for the rights of individuals with disabilities.

 

KEY: [ developmentally disabled, Americans with Disabilities Act 1992, Rehabilitation Act 1973, Civil Rights Act 1964 ]grievance procedures, disabled persons

Date of Enactment or Last Substantive Amendment: [June 13, 2008]2011

Notice of Continuation: February 5, 2007

Authorizing, and Implemented or Interpreted Law: 62A-1-111; 63G-3-201(3); 28 CFR 35.107

 

---