No. 36784 (Amendment): Rule R460-8. Americans with Disabilities Act Complaint Procedures

(Amendment)

DAR File No.: 36784
Filed: 09/17/2012 05:00:44 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

The purpose for the amendment is to add language to the rule that takes into account changes promulgated in recent Americans with Disabilities Act Amendment Act regulations, particularly an expansion in the definition of a qualified individual. The amendment also clarifies who is the Utah Housing Corporation (UHC) ADA coordinator and reduces timeframes in which UHC will respond to complainants.

Summary of the rule or change:

Section R460-8-1 adds minor wording clarifications. Section R460-8-2 changes include: 1) adding language pursuant to the Americans with Disabilities Act Amendments Act (ADAAA) defining and clarifying what individuals may file a complaint with UHC alleging noncompliance with Title II of the ADAAA; 2) adding language to clarify that the president of UHC or his designee acts as the agency's ADA coordinator. Section R460-8-3 eliminates a reference to the ADA state coordinating committee, a committee that no longer exists. Section R460-8-4 reduces the time frame from 45 to 30 days in which UHC's ADA coordinator will respond to a complaint. Section R460-8-5 changes include: 1) clarification that the president or his designee may consult with legal counsel and/or the human resource department when considering an appeal of a decision by UHC's ADA coordinator; and 2) reducing from 45 to 30 days the time which the president or his designee has to provide a decision or reasoning why a decision has not yet been reached to a complainant. Section R460-8-7 adds clarifying and removes confusing language regarding the remedies available under state or federal law or regulation. The Authorizing, and Implemented or Interpreted Law reference has been updated to reflect changes made in the 2012 Utah General Session.

State statutory or constitutional authorization for this rule:

• Subsection 35A-8-711(1)

Anticipated cost or savings to:

the state budget:

There is no anticipated cost or savings to the state budget because Subsection 35A-8-702(3)(b) states the UHC is a "financially independent body" and therefore, receives no state appropriation. Furthermore, the changes made to this rule are merely clarifying in nature and do not entail any additional requirements.

local governments:

There is no cost or savings to any local government because the changes made to this rule are merely clarifying in nature.

small businesses:

There is no cost or savings to any small businesses because the changes made to this rule are merely clarifying in nature.

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

There is no cost or savings to other persons because the changes made to this rule are merely clarifying in nature.

Compliance costs for affected persons:

There are no anticipated additional compliance costs (in addition to existing compliance costs) for persons affected by this rule.

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

It is anticipated that there will be no fiscal impact on businesses from the implementation of the changes to this rule.

Grant S. Whitaker, President and CEO

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

Housing Corporation (Utah)
Administration
2479 LAKE PARK BLVD
WEST VALLEY CITY, UT 84120

Direct questions regarding this rule to:

• Jonathan Hanks at the above address, by phone at 801-902-8221, by FAX at 801-902-8321, 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:

11/14/2012

This rule may become effective on:

11/21/2012

Authorized by:

Grant Whitaker, President and CEO

RULE TEXT

R460. Housing Corporation, Administration.

R460-8. Americans with Disabilities Act (ADA) Complaint Procedures.

R460-8-1. Authority and Purpose.

(1) UHC, pursuant to 28 CFR 35.107 adopts and publishes within this rule, complaint procedures providing for prompt and equitable resolution of complaints filed according to Title II of the Americans With Disabilities Act, as amended.

(2) The provision of 28 CFR 35 implements the provisions of Title II of the Americans With Disabilities Act, as amended, 42 U.S.C. 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 a public entity, or be subjected to discrimination by this or any such entity.

 

R460-8-2. Filing of Complaints.

(1) Any qualified individual (defined as an individual who meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by UHC; also, an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that individual holds or desires) may file a complaint alleging noncompliance with Title II of the Americans with Disabilities Act, as amended, or the federal regulations promulgated thereunder.

([1]2) The complaint shall be filed timely to assure prompt, effective assessment and consideration of the facts, but no later than 9[6]0 days from the date of the alleged act of discrimination.

([2]3) The complaint shall be filed with the president of UHC['s] or the president's appointed ADA coordinator in writing or in another accessible format suitable to the complainant.

([3]4) Each complaint shall include the following:

(a) the complainant's name and mailing address;

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

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

(d) a description of the action and accommodation desired; and

(e) a signature of the complainant or by his or her legal representative.

([4]5) Complaints filed on behalf of classes or third parties shall describe or identify by name, if possible, the alleged victims of discrimination.

 

R460-8-3. Investigation of Complaint.

(1) The ADA coordinator shall investigate 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 R460-8-2([3]4) if it is not made available by the complainant.

(2) When conducting the investigation, the ADA coordinator may seek assistance from UHC's legal counsel and human resource staff in determining what action, if any, shall be taken on the complaint. The coordinator will consult with the president [and the ADA state coordinating committee ]before making any decision that would involve any of the following:

(a) an expenditure of funds;

(b) facility modifications; or

(c) modification of an employment classification.

 

R460-8-4. Issuance of Decision.

(1) Within [45]30 days after receiving the complaint, the ADA coordinator shall issue a decision outlining in writing or in another suitable format stating what action, if any, shall be taken on the complaint.

(2) If the ADA coordinator is unable to reach a decision within the [45]30 day period, he shall notify the complainant in writing or by another suitable format why the decision is being delayed and what additional time is needed to reach a decision.

 

R460-8-5. Appeals.

(1) The complainant 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 president or a designee other than the ADA coordinator.

(3) The filing of an appeal shall be considered as authorization by the complainant to allow review of all information, including information classified as private or controlled, by the president or designee.

(4) The appeal shall describe in sufficient detail why the ADA coordinator's decision is in error, is incomplete or ambiguous, is not supported by the evidence, or is otherwise improper.

(5) The president or designee shall review the factual findings of the investigation and the complainant's statement regarding the inappropriateness of the ADA 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. The president may consult with legal counsel and/or the human resource department[the state ADA coordinating committee] before making any decision that would involve any of the following:

(a) an expenditure of funds;

(b) facility modifications; or

(c) modification of an employment classification.

(6) The decision shall be issued within 45 days after receiving the appeal and shall be in writing or in another suitable format to the individual.

(7) If the president or his designee is unable to reach a decision within the [45]30 day period, he shall notify the complainant in writing or by another suitable format why the decision is being delayed and the additional time needed to reach a decision.

 

R460-8-6. 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 63G-2-305 until the ADA coordinator, president or their designees issue the decision at which time any portions of the record that may pertain to the individual's medical condition 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 ADA coordinator, president or their designees shall be classified as public information.

 

R460-8-7. Relationship to Other Laws.

This rule does not prohibit or limit the use of remedies available to individuals under the Utah Antidiscrimination Act (see Utah Code 34A-5[-101]); the Federal ADA Complaint Procedures (28 CFR 35 Subpart F[, beginning with Part 35.170, 1991 edition]); or any other Utah or federal law that provides equal or greater protection for the rights of individuals with disabilities.

 

KEY: housing finance

Date of Enactment or Last Substantive Amendment: [1993]2012

Notice of Continuation: October 15, 2007

Authorizing, and Implemented or Interpreted Law: [9-4-910]35A-8-711

 

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