DAR File No. 29045

Governor, Administration

R355-2

Complaint Procedure for Americans With Disabilities Act (ADA)

NOTICE OF PROPOSED RULE

DAR File No.: 29045
Filed: 09/18/2006, 05:08
Received by: NL

RULE ANALYSIS

Purpose of the rule or reason for the change:

The rule is no longer necessary as information contained in the rule has been incorporated into policy.

Summary of the rule or change:

The rule is repealed in its entirety.

State statutory or constitutional authorization for this rule:

Section 67-19-32

Anticipated cost or savings to:

the state budget:

The rule change does not alter the Americans with Disabilities Act (ADA) requirements in the Governor's Office and does not result in either costs or savings to the state.

local governments:

The rule change applies only to the Governor's Office and does not apply to local governments.

other persons:

The rule change applies only to the Governor's Office and does not apply to other persons.

Compliance costs for affected persons:

The rule change does not alter ADA requirements in the Governor's Office and does not result in either costs or savings to affected persons.

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

This rule repeal does not fiscally impact businesses as the rule only applies to the Governor's Office. John Nixon, Director

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

Governor
Administration
Room E220 EAST BUILDING
420 N STATE ST
SALT LAKE CITY UT 84114-2220

Direct questions regarding this rule to:

Hunter Finch at the above address, by phone at 801-538-1553, by FAX at 801-538-1547, or by Internet E-mail at HFINCH@utah.gov

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:

11/14/2006

This rule may become effective on:

11/21/2006

Authorized by:

John Nixon, Director

R355. Governor, Administration.

[R355-2. Complaint Procedure for Americans With Disabilities Act (ADA).

R355-2-1. Authority and Purpose.

(a) This rule is promulgated pursuant to Section 67-19-32 of the Personnel Management Act and Section 63-46a-3 of the State Administrative Rulemaking Act. For purposes of this rule, the Utah Governor's Office includes the Office of the Lt. Governor, the Governor's Office of Planning and Budget, and the Office of the Commission on Criminal and Juvenile Justice. These Governor's Office entities (hereinafter; "department"), adopt and define this complaint procedure to provide for prompt and equitable resolution of complaints filed in accordance with Title II of the Americans With Disabilities Act, pursuant to 42 U.S.C. 12201.

(b) Pursuant to Section 67-19-32, no qualified individual with a disability, by reason of such disability, shall be excluded from participation in or be denied benefits of services, programs, or activities of this department, or be subjected to discrimination by this department.

 

R355-2-2. Definitions.

(a) "Department ADA Coordinator" means the Utah Governor's Office's coordinator, or designee, who is responsible for investigating and providing prompt and equitable resolution of complaints filed by qualified individuals with disabilities in accordance with the Americans With Disabilities Act, or provisions of this rule.

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

(1) Governor's Office of Planning and Budget;

(2) Department of Human Resource Management;

(3) Division of Risk Management, Department of Administrative Services;

(4) Division of Facilities Construction Management, Dept. of Administrative Services; and

(5) Office of the Attorney General.

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

(e) "Individual with a disability" (individual) means a person who has a disability which limits one of his 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 Utah Governor's Office, or who would otherwise be an eligible applicant for vacant state positions, as well as those who are employees of the state.

 

R355-2-3. 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.

(b) The complaint shall be filed with the department'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 department's alleged discriminatory action in sufficient detail to inform the department 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 his or her legal representative.

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

 

R355-2-4. Investigation of Complaint.

(a) The ADA Coordinator shall conduct an investigation of each complaint received, and shall assure that all relevant facts are determined and documented. This may include gathering all information listed in Section (3)(c) of this rule if it is not made available by the individual.

(b) In conducting the investigation, the ADA Coordinator retains the option to obtain input from the department's human resource and budget staff, and the State ADA Coordinating Committee in considering what actions could be taken on the complaint that would involve:

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

(2) facility modifications; or

(3) personnel reclassification or reallocation in grade.

 

R355-2-5. Issuance of Decision.

(a) Within 15 working days after receiving the complaint, the ADA Coordinator shall issue a decision outlining in writing or another acceptable suitable format stating what action, if any, shall be taken on the complaint.

(b) If the ADA Coordinator is unable to reach a decision within the 15 working day period, he shall notify the individual with a disability in writing or by another acceptable suitable format why the decision is being delayed and what additional time is needed to reach a decision.

 

R355-2-6. Appeals.

(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 department's Chief of Staff or a designee other than the department's ADA Coordinator.

(c) Filing of an appeal shall be considered as authorization by the individual to allow review of all information classified as private or controlled, by the Chief of Staff, or designee.

(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 Chief of Staff, 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 the Chief of Staff or designee to:

(1) an expenditure of funds which is not absorbable and would require appropriation authority;

(2) facility modifications; or

(3) reclassification or reallocation in grade; he shall also consult with the State's ADA Coordinating Committee.

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

(g) If the Chief of Staff or his designee is unable to reach a decision within the ten working day period, he shall notify the individual in writing or by another acceptable suitable format why the decision is being delayed and the additional time needed to reach a decision.

 

R355-2-7. Relationship to Other Laws.

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 (28 CFR Part 35.170, 1992 edition); or any other Utah State or federal law that provides equal or greater protection for the rights of individuals with disabilities.

 

KEY: disabilities act, ADA, grievance

Date of Enactment or Last Substantive Amendment: November 19, 1996

Notice of Continuation: October 10, 2001

Authorizing, and Implemented or Interpreted Law: 67-19-32]