Insurance

Administration

Rule R590-149: Americans with Disabilities Act Grievance Procedures

Effective Date: 01/10/2022

Admin. Code Reference: R590-149

Rule Type: Current Rule

R590. Insurance, Administration.

R590-149. Americans with Disabilities Act Grievance Procedures.

R590-149-1. Authority.

This rule is promulgated by the commissioner pursuant to Section 31A-2-201.

R590-149-2. Purpose and Scope.

(1) The purpose of this rule is to implement the Americans with Disabilities Act (ADA), 42 U.S.C. 12101-12213 and 28 CFR 35, which provides that no individual may be excluded from participation in or be denied the benefits of the services, programs, or activities of the department, or be subjected to discrimination by the department because of a disability.

(2) This rule applies to:

(a) a qualified individual; and

(b) the department.

R590-149-3. Definitions.

Terms used in this rule are defined in Section 31A-1-301. The definitions in the Americans with Disabilities Act, 42 U.S.C. 12101-12213 and 28 CFR 35, are incorporated by reference. Additional terms are defined as follows:

(1)(a) "ADA coordinator" means an employee assigned by the commissioner to investigate and facilitate the prompt and equitable resolution of a complaint filed by a qualified individual.

(b) The ADA coordinator may be a representative of the Department of Government Operations, Division of Human Resource Management assigned to the department.

(2) "Complainant" means a qualified individual or a qualified individual's authorized representative.

(3)(a) "Designee" means an individual appointed by the commissioner to investigate an allegation of ADA noncompliance when the ADA coordinator is unable or unwilling to investigate for any reason, including a conflict of interest.

(b) A designee does not have to be an employee of the department; however, the designee must have a working knowledge of the responsibilities and obligations required of employers and employees by the ADA.

(4) "Director" means the head of the division of the department affected by a complaint filed under this rule.

R590-149-4. Complaint.

(1) Any qualified individual may file a complaint alleging noncompliance with the ADA or a federal regulation promulgated thereunder.

(2) A qualified individual shall file a complaint with the ADA coordinator, unless the complaint alleges that the ADA coordinator is non-compliant, in which case a qualified individual shall file a complaint with the designee.

(3) A qualified individual shall file a complaint within 90 days after the date of the alleged noncompliance to facilitate the prompt and effective consideration of pertinent facts and appropriate remedies; however, the commissioner has the discretion to direct that the grievance process be utilized to address legitimate complaints filed more than 90 days after alleged noncompliance.

(4) Each complaint shall:

(a) include the qualified individual's name and address;

(b) include the nature and extent of the qualified individual's disability;

(c) describe the department's 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 complainant.

(5) A complaint filed on behalf of a class of qualified individuals or a third party shall describe and identify by name, if possible, the alleged victims of discrimination.

(6) If a complaint is not in writing, the ADA coordinator or designee shall reduce the complaint to writing.

(7) By filing a complaint or a subsequent appeal, the complainant authorizes the ADA coordinator or designee to conduct a confidential review of all relevant information, including:

(a) any record classified as private or controlled under Sections 63G-2-302 and 63G-2-304, consistent with 42 U.S.C. Section 12112(d)(3)(B) and (C) and 42 U.S.C. 12112(d)(4)(A), (B), and (C); and

(b) any relevant information otherwise protected by statute, rule, regulation, or other law.

R590-149-5. Investigation.

(1) The ADA coordinator or designee shall investigate each complaint received to the extent necessary to assure all relevant facts are determined and documented.

(2)(a) The ADA coordinator or designee may seek assistance from the Attorney General's Office and the Division of Human Resource Management to determine what action, if any, should be taken on the complaint.

(b) The ADA coordinator or designee may also consult with the director of the affected division in making a recommendation.

R590-149-6. Decision.

(1) The ADA coordinator or designee shall issue a recommendation to the director within 15 working days after receiving the complaint.

(2) If the ADA coordinator or designee is unable to make a recommendation within 15 working days, the complainant shall be notified that the recommendation is delayed and given an estimate of the additional time needed.

(3) The director may confer with the ADA coordinator or designee and the complainant and may accept or modify the recommendation from the ADA coordinator or designee to resolve the complaint.

(4) The director shall issue a written decision within 15 working days after the director's receipt of the recommendation from the ADA coordinator or designee.

(5) The director shall take all reasonable steps to implement the decision.

(6) The ADA coordinator or designee shall consult with representatives from other state agencies that may be affected by the decision, including the Governor's Office of Planning and Budget, the Division of Human Resource Management, the Division of Risk Management, the Division of Facilities Construction Management, and the Office of the Attorney General before making any recommendation that would require:

(a) an expenditure of funds beyond the applicable budgetary line item;

(b) a facility modification; or

R590-149-7. Appeal.

(1) The complainant may appeal the decision of the director to the commissioner by filing an appeal within ten working days of receipt of the director's decision.

(2) The appeal shall be filed in writing, or in another accessible format reasonably suited to the complainant's ability.

(3)(a) The commissioner may name an assistant to help with the appeal.

(b) Neither the director, the ADA coordinator, nor the designee may be the commissioner's assistant for the appeal.

(4) The appeal shall describe, in sufficient detail, why the director's decision does not effectively address the complainant's requirements.

(5)(a) The commissioner shall review the ADA coordinator's recommendation, the director's decision, and the issues raised on appeal prior to reaching a decision.

(b) The commissioner may direct additional investigation, as necessary.

(6) The commissioner shall consult with representatives from any other state agency that may be affected by the decision, as provided in Subsection R590-149-6(6).

(7) The final written decision shall be issued by the commissioner within 15 working days of receiving the appeal.

(8) If the commissioner is unable to reach a final decision within 15 working days, the qualified individual will be notified that the final decision is being delayed and given an estimate of the additional time needed to reach a decision.

R590-149-8. Records Classification.

(1)(a) A record created in administering this rule is classified as "protected" under Section 63G-2-305.

(b) After a decision is issued under Section R590-149-6 or a final decision on appeal under Section R590-149-7, any portion of the record pertaining to the qualified individual's medical condition shall remain classified as "private" under Section 63G-2-302 or "controlled" under Section 63G-2-304, consistent with 42 U.S.C. 12112(d)(4)(A), (B), and (C) and 42 U.S.C. 12112(d)(3)(B) and (C).

(2) Notwithstanding Subsection (1), the written decision of the director or commissioner is classified as "public" under Section 63G-2-301.

R590-149-9. Relationship to Other Laws.

This rule does not prohibit or limit the use of any remedy available to an individual under:

(1) Title 34A, Chapter 5, Utah Antidiscrimination Act;

(2) the Americans with Disabilities Act, 42 U.S.C. Section 12101-12213; or

(3) any other state or federal law that provides equal or greater protection for the rights of an individual with a disability.

R590-149-10. Severability.

If any provision of this rule, Rule R590-149, or its application to any person or situation is held invalid, such invalidity does not affect any other provision or application of this rule that can be given effect without the invalid provision or application. The remainder of this rule shall be given effect without the invalid provision or application.

KEY: insurance, ADA

Date of Last Change: January 10, 2022

Notice of Continuation: June 3, 2022

Authorizing, and Implemented or Interpreted Law: 63G-3-201(2)