No. 34896 (Amendment): Rule R590-149. ADA Complaint Procedure Rule

(Amendment)

DAR File No.: 34896
Filed: 06/01/2011 04:00:13 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

This rule is being amended to comply with changes made in the federal Americans with Disability Act Amendments Act (ADAAA) that went into effect 01/01/2009 and to eliminate the reference in the rule to the "ADA State Coordinating Committee" which has not functioned for about nine years.

Summary of the rule or change:

Changes being made to the rule include: addition of Section 31A-2-201 to the Authority Section (R590-149-1); updating reference to ADAAA; addition of definitions for Department, Designee, Director and the elimination of a definition for ADA State Coordinating Committee; time requirements have been increased for the filing of a complaint after the violation from 60 to 90 days, for filing of an appeal from 5 to 10 working days; final decision on an appeal from 10 to 15 working days; "individual" is changed to "complainant"; requires ADA coordinator or designee to reduce complaints to writing if filed otherwise; ADA records specifically classified under the Government Records Access and Management Act (GRAMA); ADA coordinator or designee are to consult with named state agencies before making recommendations in certain cases; and allows the insurance commissioner to name a designee to assist in the appeal process.

State statutory or constitutional authorization for this rule:

• Section 31A-2-201
• Section 63G-3-201

Anticipated cost or savings to:

the state budget:

Changes to the rule are for clarification purposes mainly and will allow more time to file a complaint, an appeal, and a final decision on an appeal. These changes will not affect department or state revenues or costs, nor the department's workload.

local governments:

The rule itself relates solely to the Insurance Department requiring that no individual 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 the department because of a disability.

small businesses:

Changes to the rule are for clarification purposes mainly and will allow more time for individuals to file a complaint and an appeal with the department, and also gives the department more time to give a final decision on an appeal. These changes are a matter of procedure and should create no financial impact.

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

Changes to the rule are for clarification purposes mainly and will allow more time for individuals, either representing themselves, or a business or government entity, to file a complaint and an appeal with the department, and also gives the department more time to give a final decision on an appeal. These changes are a matter of procedure and should create no financial impact.

Compliance costs for affected persons:

Changes to the rule are for clarification purposes mainly and will allow more time for individuals, either representing themselves, or a business or government entity, to file a complaint and an appeal with the department, and also gives the department more time to give a final decision on an appeal. These changes are a matter of procedure and should create no financial impact.

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

This rule should not have a fiscal impact on anyone who complies with the changes.

Neal T. Gooch, Commissioner

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

Insurance
Administration
450 N MAIN ST
SALT LAKE CITY, UT 84114-1201

Direct questions regarding this rule to:

• Jilene Whitby at the above address, by phone at 801-538-3803, by FAX at 801-538-3829, 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:

07/22/2011

Authorized by:

Jilene Whitby, Information Specialist

RULE TEXT

R590. Insurance, Administration.

R590-149. Americans with Disabilities Act (ADA) Grievance[Complaint] Procedures[ Rule].

R590-149-1. Authority and Purpose.

[A.](1) This rule is promulgated pursuant to Section 31A-2-201(3)(a) and Subsection 63G-3-201([2]3) of the State Administrative Rulemaking Act. The Insurance Department, pursuant to 28 CFR 35.107, [1992 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, as amended.

[B.](2) The purpose of this rule is to implement the provisions of 28 CFR 35, [1992 edition, implements the provisions of]and Title II of the Americans With Disabilities Act, [42 U.S.C. 12201,] which provides that 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 the Insurance Department, or be subjected to discrimination by [this or any such entity]the department because of a disability.

 

R590-149-2. Definitions.

[A.](1) "The ADA Coordinator" means the [Insurance Department's coordinator or his designee who has responsibility for investigating and providing]employee assigned by the commissioner to investigate and facilitate the prompt and equitable resolution of complaints filed by qualified [individuals]persons with disabilities. The ADA Coordinator may be a representative of the Department of Human Resource Management assigned to the department.

[B. "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 Resources Management;

(3) Division of Risk Management;

(4) Division of Facilities Construction Management; and

(5) Office of the Attorney General.

C.](2) "Department" means the Insurance Department.

(3) "Designee" means an individual appointed by the commissioner or a 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" 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.

[D.](6) "Major life activities" [means functions such as]includes caring for one's self, performing manual tasks, walking, seeing, hearing, eating, sleeping standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking and working. A major life activity also includes the operation of a major bodily function, such as functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.

[E.](7) " Qualified Individual[ with a disability]" [(hereinafter individual)] means [a person who has a disability which limits one of his major life activities and]an individual who meets the essential eligibility requirement for the receipt of services or the participation in programs or activities provided by the [Insurance Department]department[, or who would otherwise be an eligible applicant for vacant state positions, as well as those who are employees of the state]. A qualified individual also who, with or without reasonable accommodation, can perform the essential functions of the employment position that individual holds or desires.

 

R590-149-3. Filing of Complaints.

[A. 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 January 26, 1992 and the effective date of this rule may be filed within 60 days of the effective date of this rule.

B. The complaint shall be filed with the Insurance Department's ADA Coordinator in writing or in another acceptable format suitable to the individual.](1) Any qualified individual 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 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 shall file their complaints within 90 days after the date of the alleged noncompliance to facilitate the prompt and effective consideration of pertinent facts and appropriate remedies; however, the commissioner has the discretion to direct that the grievance process be utilized to address legitimate complaints filed more than 90 days after alleged noncompliance.

[C.](4) Each complaint shall:

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

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

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

([4]d) describe the action and accommodation desired; and

([5]e) be signed by the [individual]complainant or by his [or her] legal representative.

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

(6) If the complaint is not in writing, the ADA coordinator or designee shall transcribe or otherwise reduce the complaint to writing upon receipt of the complaint.

(7) By the filing of a complaint or a subsequent appeal, the complainant authorizes necessary parties to conduct a confidential review all relevant information, including records classified as private or controlled under the Government Records Access and Management Act, Utah Code, Subsection 63G-2-302(1)(b) and Section 63G-2-304,consistent with 42 U.S.C. 12112(d)(4)(A), (B), and (C) and 42 U.S.C. Section 12112(d)(3)(B) and (C), and relevant information otherwise protected by statute, rule, regulation, or other law.

 

R590-149-4. Investigation of Complaint.

[A.](1) The ADA [C]coordinator or designee 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(C)]R590-149-3(4) and (7) of this rule if it is not made available by the [individual]complainant.

[B. When conducting the investigation, the coordinator may seek assistance from the Insurance Department's legal, human resource and budget staffs 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 appropriate authority;

(2) facility modifications; or

(3) reclassification or reallocation in grade; the coordinator shall consult with the ADA State Coordinating Committee.](2) The ADA coordinator or designee may seek assistance from the Attorney General's staff, and the department's human resource 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 Department of Human Resource Management, 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;

(b) require facility modifications; or

(c) require reassignment to a different position.

 

R590-149-5. Issuance of Decision.

[A.](1) Within 15 working days after receiving the complaint, the ADA [C]coordinator or designee shall [issue a decision outlining]recommend to the director in writing or in another acceptable suitable format stating what action, if any, [shall]should be taken on the complaint.

[B.](2) If the coordinator or designee is unable to [reach a decision]make a recommendation within the 15 working day period, [he]the complainant shall [notify the individual with a disability]be notified in writing , or by another acceptable format suitable [format]to the complainant, stating why the [decision]recommendation is [being] delayed and what additional time is needed[ to reach a decision].

(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 shall render a decision within 15 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, or in another accessible format suitable to the complainant, and shall be promptly delivered to the complainant.

 

R590-149-6. Appeals.

[A.](1) The [individual]complainant may appeal the decision of the [ADA Coordinator]director to the commissioner by filing an appeal within [five]ten working days from the receipt of the director's decision.

[B.](2) The appeal shall be filed in writing , or in another accessible format reasonably suited to the complainant's ability. [with the Insurance Department's executive director or a designee other than the Department's ADA Coordinator.]

[C.](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 Department's executive director or designee.]The commissioner may name a designee to assist on the appeal. The ADA coordinator and the director's designee may not also be the commissioner's designee for the appeal.

[D.](4) In the[The] appeal the complainant 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]decision does not effectively address the complainant's needs.

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

([1]a) involve an expenditure of funds [which is not absorbable and]beyond what is reasonably able to be accommodated within the applicable line item so that it would require a separate appropriation [authority];

([2]b) require facility modifications; or

([3]c) [reclassification or reallocation in grade; the executive director or designee shall also consult with the State ADA Coordinating Committee]require reassignment to a different position.

[F.](6) The final decision shall be issued by the commissioner within [ten]fifteen working days after receiving the complainant's appeal and shall be in writing or in another accessible format suitable [format] to the [individual]complainant, and shall be promptly delivered to the complainant.

[G.](7) If the [executive director]commissioner or [his] designee is unable to reach a final decision within the [ten]fifteen working day period, he shall notify the [individual]complainant in writing or by another [acceptable]accessible format suitable to the complainant, [format] why the final decision is being delayed and the additional time needed to reach a decision.

 

R590-149-7. 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]Records created in administering this rule are classified as "protected " [as defined] under Subsection 63G-2-305(9), (22), (24), and (25).

(2) [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]After issuing a decision under Section R590-149-5 or a final decision upon appeal under Section R590-149-6, portions of the record pertaining to the complainant's medical condition shall remain classified as "private" as defined under Section 63G-2-302 (1)(b) or "controlled " as defined in Section 63G-2-304, as consistent with 42 U.S.C. 12112(d)(4)(A), (B), and (C) and 42 U.S.C. 12112(d)(3)(B) and (C), at the option of the ADA coordinator. [All other information gathered as part of the complaint record shall be classified as private information.]

(a) [Only t]The written decision of the [coordinator]division director[,] or [executive director]commissioner [or designees] shall be classified as "public " information. All other records, except "controlled" records under Subsection R590-149-7(2), shall be classified as "private."

 

R590-149-8. Relationship to Other Laws.

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

(1) the [S]state Anti-Discrimination Complaint Procedures Section [(]67-19-32[)]and 34A-5-107;

(2) the Federal ADA Complaint Procedures [(]28 CFR [Subpart F, beginning with Part] 35.170[, 1992 edition)]through 28 CFR 35.178; or

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

 

KEY: insurance, ADA

Date of Enactment or Last Substantive Amendment: [1992]2011

Notice of Continuation: June 26, 2007

Authorizing, and Implemented or Interpreted Law: 63G-3-201(2)

 

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