DAR File No. 31067

Human Services, Administration

R495-878

Department of Human Services Civil Rights Complaint Procedure

NOTICE OF PROPOSED RULE

DAR File No.: 31067
Filed: 03/20/2008, 01:37
Received by: NL

RULE ANALYSIS

Purpose of the rule or reason for the change:

The purpose of this amendment is to update references to office names and addresses, update the format of the rule, and remove duplicative language.

Summary of the rule or change:

The rulemaking authorizing statute was added. Duplicative language was removed. The name and address of the department coordinator was updated. The address for the Federal Civil Rights office in Denver was updated. The rule was renumbered to conform to the state rulemaking guidelines.

State statutory or constitutional authorization for this rule:

Sections 62A-1-111, 45 CFR 80.4(b)(2), 45 CFR84.7(b), and 28 CFR 35.107

Anticipated cost or savings to:

the state budget:

The changes to this rule are only informational or formatting in nature and do not impact the state budget.

local governments:

The changes to this rule are only informational or formatting in nature and do not impact local governments.

small businesses and persons other than businesses:

The changes to this rule are only informational or formatting in nature and do not impact small businesses and persons other than businesses.

Compliance costs for affected persons:

The changes to this rule are only informational or formatting in nature and do not impact compliance costs for affected persons.

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

The amendment of this rule does not have a fiscal impact on businesses since it merely updates the format of the rule and the office names and addresses. Lisa-Michele Church, Executive Director

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

Human Services
Administration
120 N 200 W
SALT LAKE CITY UT 84103-1500

Direct questions regarding this rule to:

L Ray Winger at the above address, by phone at 801-538-4319, by FAX at 801-538-4424, or by Internet E-mail at raywinger@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:

05/15/2008

This rule may become effective on:

05/22/2008

Authorized by:

Lisa-Michele Church, Executive Director

R495. Human Services, Administration.

R495-878. Department of Human Services Civil Rights Complaint Procedure.

R495-878-1. Authority and Purpose.

[A.](1) This rule is [promulgated pursuant to Section 63-46a-3 (2) of the State Administrative Rulemaking Act]authorized by Section 62A-1-111 and the Federal Civil Rights statutes and regulations cited below. The Department of Human Services, (Department) adopts, defines, and publishes within this rule complaint procedures that incorporate due process standards and that provide for the prompt and equitable resolution of complaints filed in accordance with [any of the following:

(1) Title VI of the Civil Rights Act of 1964, Pub.L. 88-352, 42 U.S.C.A., Section 2000d-1 et seq. (Title VI), and its implementing regulation, Title 45 Code of Federal Regulations (CFR), Part 80, Section 80.4(b)(2);

(2) Section 504 of the Rehabilitation Act of 1973, Pub.L. 93-112, Pub.L. 93-516, Pub.L. 95-602, and Pub.L. 102-569, 29 U.S.C. 794 et seq., and its implementing regulation, Title 45 CFR Part 84, Section 84.7(b); and,

(3) Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. 12131-12134 and its implementing regulation, Title 28 CFR Part 35, Section 35.107.

"Title VI prohibits discrimination on the ground of race, color, or national origin; Section 504 prohibits discrimination on the basis of handicap; and the ADA prohibits discrimination on the basis of disability."

B. The Americans with Disabilities Act mandates 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, this Department, or be subjected to discrimination by this Department including discrimination in employment matters.]the Civil Rights Act of 1964, 45 CFR 80.4(b)(2); the Rehabilitation Act of 1973, 45 CFR 84.7(b); and the Americans with Disabilities Act (ADA), 28 CFR 35.107.

 

R495-878-2. Definitions.

(1) Terms used in this rule with respect to ADA are defined in 28 CFR 35.104.

(2) Terms used in this rule with respect to the Rehabilitation Act of 1973 are defined in 45 CFR 84.3.

(3) Terms used in this rule with respect to the Civil Rights Act of 1964 are defined in 45 CFR 80.13.

[A.](4) "The Civil Rights ["]Coordinator"[ (ADA, Section 504, and Title VI)] for the Department[ of Human Services] is the Director of the [Office]Bureau of Administrative Support. The Coordinator has responsibility for investigating and providing prompt and equitable resolution of complaints filed by persons alleging discrimination in the receipt of services due to disabilities, race, color, or national origin.

[B.](5) The "State ADA Coordinating Committee" means that committee with representatives designated by the directors of the following agencies:

([1]a) Office of Planning and Budget;

([2]b) Department of Human Resource Management;

([3]c) Division of Risk Management;

([4]d) Division of Facilities Construction Management; and

([5]e) Office of the Attorney General.

[C.](6) "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.[ (Impairment is defined in 29 CFR 163A2.)]

[ D. "Handicapped Person" under Section 504 means any individual who (i) has a physical or mental impairment which substantially limits one or more major life activities, (ii) has a record of such an impairment, or (iii) is regarded as having such an impairment.

] [E.](7) "Major life activities" means functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.[

(2) With respect to other services and activities, an individual with a disability (a handicapped person) who with or without reasonable modification to rules, policies, or practices, the removal of architectural, communication or transportation barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.]

[G.](8) "Qualified 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 requirements for the receipt of services or the participation in programs or activities provided by the Department of Human Services or who would otherwise be an individual with a disability who satisfies the requisite skill, experience, education and other job-related requirements of the employment position.

 

R495-878-3. Filing of Complaints.

[A.](1) An individual shall file the complaint 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.

[B.](2) The complaint may be filed with any division, office or regional office of the Department or directly with the Department's Civil Rights Coordinator[, Civil Rights, Office of Administrative Support, who has been designated as the Coordinator for the Department]. Complaints filed locally and not resolved within five [(5) ]working days are to be forwarded to the Coordinator. The complaint shall be in writing or in another accessible format suitable to the individual and delivered or mailed to:

Coordinator, Civil Rights

[Office]Bureau of Administrative Support

[ PO Box 45500

] 120 North 200 West, Room 331

Salt Lake City, Utah [84145-0500]84103

[C.](3) Each complaint shall:

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

([2]b) include the nature and extent of the individual's disability; (if ADA or Section 504)

([3]c) describe the Department's alleged discrimination 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 or by his or her legal representative.

[D.](4) Complaints filed on behalf of classes or third parties shall describe or identify by name, if possible, the alleged victims of discrimination.

[E.](5) With or without exhausting [DHS]the Department's procedures, complainants may also file complaints alleging discrimination in employment and in the delivery of services with:

[Office For Civil Rights,

U.S. Department of Health and Human Services

Federal Office Building

1961 Stout Street

Denver, Colorado 80295-3538]Office for Civil Rights/Denver

U.S. Department of Education

1244 Speer Boulevard

Cesar E. Chavez Memorial Building

Suite 310

Denver, CO 80204

 

R495-878-4. Investigation of Complaint.

[A.](1) The Coordinator shall conduct an investigation of each complaint received. The [Office]Department of Human Resource Management Field Office-Human Services ([OHR]DHRM) shall assume lead responsibility in conducting investigations for complaints from employees alleging discrimination under Title I of the ADA. [OHR]DHRM investigations [will]shall be submitted to the Coordinator to issue a decision. The [Office]Bureau of Administrative Support shall assume lead responsibility in conducting all other civil rights investigations[ under the sections of the Acts referenced in Part I of this rule]. Investigations 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 878-3. C]R495-878-3(3) [of this rule ]if it is not made available by the individual.

[B.](2) When conducting the investigation, the Coordinator may seek assistance from other divisions/offices within the Department and the Office of the Attorney General in determining what action, if any, shall be taken on the complaint. The Coordinator shall consult with the State ADA Coordinating Committee before making any decision that would involve:

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

([2]b) facility modification beyond the Department's capability due to the constraint in item (1) above; or

([3]d) reclassification or reallocation in merit system grade.

 

R495-878-5. Issuance of Decision.

[A.](1) Within 15 working days after receiving the complaint, the Coordinator shall issue a decision outlining in writing or in another accessible format suitable to the individual stating what action, if any, shall be taken on the complaint.

[B.](2) If the Coordinator is unable to reach a decision within the 15 working day period, written notice (or notice in another acceptable format) [will]shall be provided to the complainant explaining the delay and the amount of additional time needed.

 

R495-878-6. Appeals.

[A.](1) The individual may appeal the decision of the Coordinator by filing an appeal within five working days from the receipt of the decision.

[B.](2) The appeal shall be filed in writing with the Executive Director of the Department of Human Services.

[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 Executive Director or appointed designee.

[D.](4) 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.](5) The Division Director may also appeal a decision by the Coordinator when the decision is perceived to negatively affect Division operation.

[F.](6) The Executive Director or appointed 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 making any decision that would require[:];

([1]a) an expenditure of funds which is not absorbable within the agency or Department's budget and would require appropriation authority:

([2]b) facility modifications beyond the Department's capability [due to the constraint in item (1) above]to be absorbed within the budget and would require appropriation authority; or

([3]d) reclassification or reallocation in merit system grade.

[G.](7) The decision shall be issued within [fifteen]15 working days after receiving the appeal and shall be in writing or in another accessible format suitable to the individual.

[H.](8) If the Executive Director is unable to reach a decision within the fifteen day working period, he shall notify the individual in writing or in another accessible format suitable to the individual why the decision is delayed and the additional amount of time needed to reach a decision.

 

R495-878-7. 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 classified as protected as defined under Section 63-2-304 until the 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 conditions 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 Coordinator, Executive Director or designees shall be classified as public information.

 

R495-878-8. Relationship to Other Laws.

(1) This rule does not prohibit or limit the use of remedies available to individuals under the State Anti-Discrimination Complaint Procedures, as found in [Section (67-19-32)]Section 67-19-32; the Federal ADA Complaint Procedures, as found in [(28 CFR Subpart F, beginning with Part]28 CFR 35.170, (1992[ Edition]); the Federal Rehabilitation Act procedures [(29 U.S. C. Section 794)]as found in 29 U.S.C. 794; or any other Utah State or Federal law that provides equal or greater protection for the rights of individuals with disabilities.

 

KEY: developmentally disabled, Americans with Disabilities Act 1992[*], Rehabilitation Act 1973[*], Civil Rights Act 1964[*]

Date of Enactment or Last Substantive Amendment: [1993]2008

Notice of Continuation: February 5, 2007

Authorizing, and Implemented or Interpreted Law: 62A-1-111