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Utah Administrative Code (Current through November 1, 2019) |
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R746. Public Service Commission, Administration |
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R746-500. Americans With Disabilities Act Complaint Procedure |
| R746-500-1. Authority and Purpose |
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A. This rule is promulgated pursuant to Section 54-1-1 and Section 63G-3-201(2) of the State Administrative Rulemaking Act. The Commission, pursuant to 28 CFR 35.107 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. B. The provision of 28 CFR 35 implements the provisions of 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 that 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 a public entity. |
| R746-500-2. Definitions |
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A. "ADA" means Americans With Disabilities Act. B. "The ADA coordinator" means the Commission Secretary or designee who has responsibility for investigating and providing prompt and equitable resolution of complaints filed by qualified individuals with disabilities. C. "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. D. "CFR" means Code of Federal Regulations, 1991 edition. E. "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 an individual; a record of the impairment; or being regarded as having an impairment. F. "Individual with a disability," hereafter individual, means a person who has a disability which limits one of his major life activities and who meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity, or who would otherwise be an eligible applicant for vacant state positions, as well as those who are employees of the Commission. G. "Major life activities" means functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. H. "Public Entity" means a state or local government; a department, agency, special purpose district, or other instrumentality of a state or local government. |
| R746-500-3. Filing of Complaints |
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A. An individual who feels he has been discriminated against by or at the Commission may file a complaint by filing 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, a complaint alleging an act of discrimination occurring before the effective date of this rule may be filed within 60 days of the effective date of this rule. B. Each complaint shall be filed with the Commission's ADA coordinator in writing or in another accessible format suitable to the individual. C. 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 Commission's alleged discriminatory action in sufficient detail to inform the public entity 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 a legal representative of that individual. D. A complaint filed on behalf of a class or third party shall describe or identify by name, if possible, the alleged victims of discrimination. |
| R746-500-4. Investigation of Complaint |
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A. The ADA coordinator shall conduct an investigation of each complaint received. The investigation shall be conducted to the extent necessary to assure that relevant facts are determined and documented. This may include gathering the information listed in Subsection 3(C) of this rule if it is not made available by the individual. B. When conducting the investigation, the coordinator may seek assistance from the Commission's staff in determining what action shall be taken on the complaint. Before making a decision that would involve: 1. an expenditure of funds which is not absorbable within the Commission's budget and would require appropriation authority; 2. facility modifications; or 3. reclassification or reallocation in grade; the coordinator shall consult with the ADA State Coordinating Committee. |
| R746-500-5. Issuance of Decision |
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A. Within 15 working days after receiving the complaint, the ADA coordinator shall issue a decision outlining in writing, or in another suitable format, what action shall be taken on the complaint. B. 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 other suitable format, why the decision is being delayed and what additional time is needed to reach a decision. |
| R746-500-6. Appeals |
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A. The individual may appeal the decision of the ADA coordinator by filing an appeal within five working days from the receipt of the decision. B. The appeal shall be filed in writing with the chairman of the Commission or a designee other than the Commission's ADA coordinator. C. The filing of an appeal shall be considered as authorization by the individual to allow review by the Commission's chairman, or designee, of information, including information classified as private or controlled. D. 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. E. The Commission chairman 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. Before making a decision that would involve: 1. an expenditure of funds which is not absorbable and would require appropriation authority; 2. facility modifications; or 3. reclassification or reallocation in grade; the Commission chairman or designee shall also consult with the State ADA Coordinating Committee. F. The decision shall be issued within ten working days after receiving the appeal and shall be in writing or another format suitable to the individual. G. If the Commission chairman or his designee is unable to reach a decision within the ten working day period the individual shall be notified, in writing or other suitable format, why the decision is being delayed and the additional time needed to reach a decision. |
| R746-500-7. Classification of Records |
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The record of each complaint and appeal, and the written records produced or received as part of those actions, shall be classified as protected as defined under Section 63G-2-305 until the ADA coordinator, Commission chairman or their designee issues the decision, when a portion of the record that may pertain to the individual's medical condition shall remain classified private as defined under Section 63G-2-302, or as controlled as defined in Section 63G-2-304. Other information gathered as part of the complaint record shall be classified as private information. Only the written decision of the coordinator, Commission chairman or designees shall be classified as public information. |
| R746-500-8. Relationship to Other Laws |
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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 at 28 CFR Subpart F, beginning with Part 35.170; or other state or federal law that provides equal or greater protection for the rights of individuals with disabilities. |