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Utah Administrative Code (Current through November 1, 2019) |
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R634. Natural Resources, Administration |
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R634-1. Americans With Disabilities Complaint Procedure |
| R634-1-1. Authority and Purpose |
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(1) This rule is promulgated pursuant to Section 63G-3-201(2) of the state Administrative Rulemaking Act. The department, pursuant to 28 CFR 35.107, 2002 ed., 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. (2) The provision of 28 CFR 35, 2002 ed., 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 a public entity, or be subjected to discrimination by this or any such entity. |
| R634-1-2. Definitions |
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(1) "Department" means the state Department of Natural Resources. (2) "The ADA Coordinator" means the Department of Natural Resources' Coordinator or designee who has responsibility for investigating and providing prompt and equitable resolution of complaints filed by qualified individuals with disabilities. (3) "The Department of Natural Resources ADA Coordinating Committee" means that committee composed of: (a) the two assistant directors; (b) the Human Resource director; and (c) the administrative assistant to the executive director. (4) "The ADA State 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 and Management; and (e) Office of the Attorney General. (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. (6) "Major life activities" means functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working. (7) "Individual with a disability" (hereinafter individual) means a person who has a disability which limits one of his or her 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 department positions, as well as those who are employees of the department. |
| R634-1-3. Filing of Complaints |
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(1) A 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. (2) The complaint shall be filed with the department's ADA Coordinator, preferably in writing or in another suitable format. (3) Each complaint should: (a) include the individual's name and address; (b) include the nature and extent of the individual's disability; (c) describe the alleged discriminatory 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. |
| R634-1-4. Investigation of Complaint |
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(1) 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 R634-1-3(c) if it is not made available by the individual. (2) When conducting the investigation, the ADA Coordinator will consult with the Department of Natural Resources' ADA Coordinating Committee. The ADA Coordinator may also seek assistance from the department's legal staff and the director of the division against which the complaint was filed, in determining what action, if any, shall be taken on the complaint. The ADA Coordinator 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 are not absorbable within the department's budget and would require appropriation authority; or (c) a situation which would involve an individual's employment status. |
| R634-1-5. Issuance of Decision |
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A written determination, or in another suitable format, as to the validity of a complaint, along with a description of the resolution, if any, will be issued by the ADA Coordinator, and a copy shall be forwarded to the complainant no later than 10 working days after the complaint has been filed. If more time is needed in the investigation, the ADA Coordinator shall communicate the reason and time frames to the complainant. |
| R634-1-6. Appeals |
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(1) The individual may appeal the decision of the ADA Coordinator by filing an appeal within 10 working days from the receipt of the decision. (2) The appeal shall be filed, preferably in writing or in another suitable format, with the department's executive director or designee. (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. (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 executive director or designee shall review the factual findings of the investigation and the individual's statement regarding 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 executive director or designee shall also 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 are not absorbable within the department's budget and would require appropriation authority; or (c) a situation that would involve an individual's employment status. (6) A written determination, or in another suitable format, as to the validity of a complaint, along with a description of the resolution, if any, will be issued by the executive director or designee, and a copy shall be forwarded to the complainant no later than 10 working days after the appeal has been filed. If more time is needed in the investigation, the executive director or designee shall communicate the reason and time frames to the complainant. |
| R634-1-7. Classification of Records |
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(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 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. (2)(a) All other information gathered as part of the complaint record shall be classified as private information. (b) Only the written decision of the ADA Coordinator, executive director or designees shall be classified as public information. |
| R634-1-8. Relationship to Other Laws |
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This rule does not prohibit or limit the use of remedies available to individuals under: (a) the state Anti-Discrimination Complaint Procedures, Section 67-19-32; (b) the Federal ADA Complaint Procedures, 28 CFR Subpart F, beginning with Part 35.170, 2002 ed.; or (c) any other Utah state or federal law that provides equal or greater protection for the rights of individuals with disabilities. |