DAR File No. 30268

Pardons (Board Of), Administration

R671-102

Americans with Disabilities Act Complaint Procedure Rule

NOTICE OF PROPOSED RULE

DAR File No.: 30268
Filed: 07/31/2007, 08:44
Received by: NL

RULE ANALYSIS

Purpose of the rule or reason for the change:

This rule is required so the agency can provide a prompt and equitable resolution of Americans with Disabilities Act (ADA) complaints filed against the Board.

Summary of the rule or change:

The changes update the complaint filing process at the agency. The changes also clarify new requirements to replace those that applied between 1992 and 2002.

State statutory or constitutional authorization for this rule:

Section 67-19-32

Anticipated cost or savings to:

the state budget:

None--The amendments do not create a cost to file or additional cost to process an ADA complaint.

local governments:

None--The amendments do not create a cost to file or additional cost to process an ADA complaint.

small businesses and persons other than businesses:

None--The amendments do not create a cost to file or additional cost to process an ADA complaint.

Compliance costs for affected persons:

None--The amendments do not create a cost to file or additional cost to process an ADA complaint.

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

It has been determined that there is no fiscal impact on business associated with this amendment. Curtis Garner, Chairman

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

Pardons (Board Of)
Administration
448 E 6400 S
SALT LAKE CITY UT 84107-8530

Direct questions regarding this rule to:

Nannette Johnson at the above address, by phone at 801-261-6485, by FAX at 801-261-6481, or by Internet E-mail at njohnson@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:

09/14/2007

This rule may become effective on:

09/21/2007

Authorized by:

Curtis L Garner, Chairman

R671. Pardons (Board of), Administration.

R671-102. Americans with Disabilities Act Complaint Procedure Rule.

R671-102-1. Purpose and Authority.

A. This rule is promulgated pursuant to Section 63-46a-3 (2) of the State Administrative Rulemaking Act. The Board of Pardons [Office]and Parole adopts, defines, and publishes within this rule complaint procedures to provide for prompt and equitable resolution of complaints filed in accordance with Title II of the Americans with Disabilities Act, [pursuant to 2002 ed]42 U.S.C. 12131 - 12134.

B. 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 this [office]agency, or be subjected to discrimination by this [office]agency.

 

R671-102-2. Definitions.

A. "The ADA Coordinator" or "Coordinator" means the [Office of the ]Board of Pardons['] and Parole [coordinator]Administrative Coordinator or other Board designee, who has responsibility 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. "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 Attorney General.

C. "Agency" means the Board of Pardons and Parole.

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

[E]F. "Individual with a disability" (hereafter individual) means a person who has a disability which limits one of his/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 [Office of the ]Board[ of Pardons], or who would otherwise be an eligible applicant for vacant state positions, as well as those who are employees of the state.

[F]G. "Board" means the Board of Pardons and Parole.

[G]H. "Chairman" or "Chairman of the Board" means Chairman of the Board of Pardons and Parole.

 

R671-102-3. Filing of Complaints.

A. A 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 Board'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 [office's]agency's alleged discriminatory action in sufficient detail to inform the [office]agency 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/her legal representative.

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

 

R671-102-4. Investigation of Complaint.

A. The ADA C[c]oordinator 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 3 (C) of this rule if it is not made available by the individual.

B. When conducting the investigation, the C[c]oordinator may seek assistance from the Board's legal, human resource and budget staff 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 appropriation authority;

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

(3) reclassification or reallocation in grade; the [c]Coordinator shall consult with the ADA State Coordinating Committee.

 

R671-102-5. Issuance of Decision.

A. Within 15 working 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.

B. If the C[c]oordinator is unable to reach a decision within the 15 day period, he/she shall notify the individual in writing or by another suitable format why the decision is being delayed and what additional time is needed to reach a decision.

 

R671-102-6. 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 [Chairman of the ]Board's Chairman or a designee other than the Board's ADA Coordinator.

C. The filing of an appeal shall be considered as authorization to the [Board's ]Chairman or designee, by the individual, to allow review of all information, including information classified as private or controlled.

D. The appeal shall describe in sufficient detail why the C[c]oordinator's decision is in error, is incomplete or ambiguous, is not supported by the evidence, or is otherwise improper.

E. The Chairman [of the Board ]or designee shall review the factual findings of the investigation and the individual's statement regarding the inappropriateness of the C[c]oordinator'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 any decision that would involve[ the Chairman or designee to]:

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

(2) facility modifications which require an expenditure of funds which is not absorbable and would require appropriation authority; or

(3) reclassification or reallocation in grade; [he/she ]the 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 in another suitable format to the individual.

G. If the Chairman or designee is unable to reach a decision within the ten working day period, he/she shall notify the individual in writing or by another suitable format why the decision is being delayed and the additional time needed to reach a decision.

 

R671-102-7. Classification of Records.

A. 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, the Chairman [of the Board ]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. All other information gathered as part of the complaint record shall be classified as private information. Only the written decision of the C[c]oordinator, Chairman [of the Board ]or designees shall be classified as public information.

 

R671-102-8. Relationship to Other Laws.

A. 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 (2002 Edition, beginning with Part 35.170[, 1992 Edition]); or any other Utah State [of]or Federal law that provides equal or greater protection for the rights of individuals with disabilities.

 

R671-102-9. Interpreters.

The Board will provide interpreters for the hearing impaired.

 

KEY: disabilities

Date of Enactment or Last Substantive Amendment: [February 15, 2003]2007

Notice of Continuation: September 18, 2002

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