Inclusion in State Government Employment, Programs and Activities (525-RICR-10-00-2)
525-RICR-10-00-2 ACTIVE RULE
A.R.I. Gen. Laws § 42-51-6(1) Governor’s Commission on Disabilities - Duties
B.R.I. Gen. Laws § 42-51-6(3) Governor’s Commission on Disabilities - Duties
C.R.I. Gen. Laws § 42-51-6.2 Committees and mediation teams
A.The purpose of this part is to coordinate the state government's implementation of:
1.Americans with Disabilities Act of 1990, 42 U.S.C. Chapter 126, as amended by the ADA Amendments Act of 2008, Public Law 110 through 325, 122 Stat. 3553 (2008);
2.R.I. Gen. Laws § 37-8-15 Public Buildings Access for People with Disabilities;
3.R.I. Gen. Laws § 37-8-15.1 Public Buildings – Accessibility of leased or rented facilities for people with disabilities; and
4.R.I. Gen. Laws Chapter 42-87 Civil Rights of People with Disabilities, as amended, which prohibits discrimination on the basis of disability by public (state and local government) entities.
2.3Incorporation by Reference
A.These regulations hereby adopt and incorporate Americans with Disabilities Act of 1990, 42 U.S.C. Chapter 126 - Equal Opportunity for Individuals with Disabilities:
2.Americans with Disabilities Act - 28 C.F.R. Part 35 Nondiscrimination on the Basis of Disability in State and Local Government Services () by reference, not including any further editions or amendments thereof and only to the extent that the provisions herein are not inconsistent with these regulations.
A.All the definitions in R.I. Gen. Laws §§ 42-87-1 "Definitions of disability" and 42-87-1.1 "Other definitions" are applicable to this part.
B.As used in this part the following words and phrases shall have the following meanings unless the context shall indicate another or different meaning or intent:
1.“Commission” means the Governor’s Commission on Disabilities;
2.“Complainant” means the individual or organization alleging non-compliance by a state agency with federal or state laws, which protect the rights of individuals with disabilities.
3.“Mediation team” means the two-person teams created by the Commission, pursuant to R.I. Gen. Laws § 42-51-6.2 to attempt by informal methods of conference, persuasion, and conciliation, to induce compliance with matters within the jurisdiction of the commission.
4.“Respondent” means the state agency, which allegedly failed to comply with federal or state laws, which protect the rights of individuals with disabilities.
5.“State agency” is defined in R.I. Gen. Law § 42-51-9(3).
A.This Part sets forth a uniform procedure for ensuring state agency compliance with the Americans with Disabilities Act.
B.The State Coordinating Committee on Disability Rights has been formed to identify areas where the most efficient methods for compliance are through systemic change rather than at the departmental or agency level. This committee will review the recommendations from working groups that will conduct periodic self-evaluations of all services, activities, and programs of state government and state agency employment practices.
C.Each self-evaluation working-group shall review all operations of the state agencies and departments represented on the working group. Any areas of potential non-compliance found shall be described in detail on ADA/504 Action Plan GCD Form. The report shall also include recommended steps to bring about conformance with the ADA Self Evaluation and Compliance Plan for the State of Rhode Island and Providence Plantations.
The Commission’s Chairperson, Executive Secretary or designee shall issue directives and instructions to ensure the full implementation of the self-evaluation and compliance plans.
2.7Notice and Requesting an Accommodation
A.A state agency shall make available to applicants, participants, beneficiaries, and other interested persons information regarding the provisions of this part and its applicability to the services, programs, or activities of the state agency, and make such information available to them in such manner as the head of the entity finds necessary to apprise such persons of the protections against discrimination assured them by the Act and this part.
B.Event and Examination Postings, Job Vacancy Notices, and Interview notices - All vacancy notices, job postings, examinations, announcements of events and notification of job or client interviews shall identify the contact person for arranging reasonable accommodations for the applicant/customer who is seeking an accommodation during the interview, examination or event. The notice shall also contain the contact person’s telephone numbers and the date accommodation requests need to be called in, so the agency is able to make arrangements. Acquiring interpreters for the deaf and other services could take up to two (2) weeks. The deadline for requesting an accommodation shall be at least seven (7) days after the agency’s notice is posted or mailed. The state agency shall make reasonable efforts to fill requests that come in after the deadline.
2.7.1Requesting a Reasonable Accommodation
A.Whenever requests for reasonable accommodations are made to the Commission, it shall determine which agency is responsible, identify the agency’s ADA Coordinator, provide the requesting party with a copy of these regulations and either refer the requesting party to that coordinator or assist the individual in preparing a GCD Reasonable Accommodation Request Form.
B.The agency’s ADA Coordinator shall:
1.Within five (5) business days upon receiving the reasonable accommodation request:
a.Provide the requesting party with a copy of these regulations (if the Commission has not already provided a copy); and
b.Determine if the requested accommodation is for an immediate event or activity, is only needed for a short period of time, or the requested accommodation is easy for the agency to provide.
2.If the requested accommodation is for an immediate event or activity, is only needed for a short period of time, or the requested accommodation is easy for the agency to provide: the ADA Coordinator shall consult with the requesting party(ies) and shall give primary consideration to the request of the individual in determining the type of accommodation provided.
a.The ADA Coordinator may seek documentation of the need for the accommodation, before providing it, unless the delay caused in seeking such documentation would cause the individual to be denied the opportunity to participate in or receive the benefits of the service or activity.
b.Prior to rejecting any request for an accommodation, the Agency’s ADA Coordinator shall consult with the Commission, to identify technical resources that might assistance both the agency and the individual.
3.When the requested accommodation will be needed for an extended period of time, such as for a student’s instruction/training, employee’s workplace, or could require the purchase of auxiliary aids or renovation of a facility, the Agency’s ADA Coordinator will:
a.Assist the individual (or parent /guardian) in preparing a Reasonable Accommodation Request form.
b.Contact the Commission to identify other state resources that could provide technical assistance to both the individual and the agency in determining:
(1)If the individual is “A qualified individual with a disability” in relation to the services or employment being accommodated;
(2) The essential functions of the job or the essential determine purpose of the agency’s service being accommodated; and
(3)The individual’s specific abilities and limitations as they relate to those essential job functions or participation in the agency’s services, identify the barriers to job performance / enjoyment of the agency’s services and assess how these barriers could be overcome with an accommodation.
C.Confidential medical information:
1.Within ten (10) business days of receiving the Reasonable Accommodation Request Form, the agency’s ADA Coordinator shall meet with the employee/applicant or customer/parent/guardian to review any medical information needed to document that the individual is “a qualified individual with a disability” in relation to the services or employment being accommodated.
2.The individual’s collective bargaining agent or other persons of his/her choosing may assist the individual during this meeting.
3.The state’s rehabilitation /disability services experts may assist the agency’s ADA Coordinator.
4.Other agency personnel shall not participate in the review of nor have access to the individual’s medical information.
5.Only medical information needed to document that the individual is a “qualified individual with a disability” and the need for the accommodation is specifically related to limitations caused by the individual’s disability may be requested and retained by the agency’s ADA Coordinator, in a confidential file separate from the individual’s personnel or other client records.
D.Preparing an accommodation plan
1.Within ten (10) business days of receiving all necessary medical documents, the agency’s ADA Coordinator shall convene a meeting of the individual, the employee’s or program / activity’s supervisor, any technical assistance providers, and the employee’s collective bargaining agent. During this meeting or meetings:
a.The attendees shall review the essential functions of the job or the essential purpose of the agency’s service being accommodated;
b.Identify the individual’s specific limitations as they relate to those essential job functions or participation in the agency’s services, identify the barriers to job performance / enjoyment of the agency’s services and assess how these barriers could be overcome with an accommodation; and
c.Identify potential accommodations and assess how effective each would be in enabling the individual to perform the essential functions of his/her job or participate in the agency’s services.
2.When more than one (1) meeting is required to determine the most effective accommodation, an interim accommodation plan shall be developed at the initial meeting with the concurrence of all parties. Each party shall retain a signed original of the interim accommodation plan.
3.In developing the accommodation plan, the agency ADA Coordinator shall consider the following factors:
a.If there are several effective accommodations that would provide equal opportunity, the ADA Coordinator shall consider the preference of the individual and select the accommodation(s) that best serves the needs of the individual and the agency. If more than one accommodation would be effective or if the individual would prefer to provide his or her own accommodation(s), the individual's preference should be given first consideration. However, the agency is free to choose among effective accommodations and may choose one that is less expensive or easier to provide.
b.The fact that an individual is willing to provide his or her own accommodation does not relieve the agency of the duty to provide this or another reasonable accommodation should the individual for any reason be unable or unwilling to continue to provide the accommodation.
4.The Reasonable Accommodation Plan shall include:
a.A listing of the essential functions of the job or essential elements of the agency’s services which the employee/applicant/customer is unable to perform without an accommodation;
b.A listing of the reasonable accommodations that will be provided and an estimated timeline for implementing each accommodation; and
c.Descriptions of interim steps that will be taken to assist the employee in performing the essential functions of the job or reassignment to other duties, until the Reasonable Accommodation Plan is fully implemented.
5.The agency’s ADA Coordinator shall, prepare a “Reasonable Accommodation Plan” and present it at a meeting of the attendees of the Reasonable Accommodation Consultation(s).
6.The requesting party shall, review the proposed Reasonable Accommodation Plan, sign and date, all the copies and check either accept or reject in the appropriate box next to her/his signature, retain one (1) signed copy and return the remaining copies of the “Reasonable Accommodation Plan”:
a.If accepting the plan - to the agency’s ADA Coordinator, or
b.If rejecting the plan – to the Commission.
7.A signed original of the “Reasonable Accommodation Plan” shall be retained by the agency ADA Coordinator. A copy shall be sent to the Commission.
a.If the individual accepts the Reasonable Accommodation Plan, the agency shall implement the accommodation plan immediately, upon receipt.
b.No Reasonable Accommodation Plans shall be implemented until accepted by the individual.
1.If the reasonable accommodation will require the obtaining of equipment or devices (auxiliary aids), the agency’s ADA Coordinator shall within 15 business days of receiving an individual’s Reasonable Accommodation Request Form.
2.The agency will obtain or modify that equipment or devices utilizing operating funds.
3.Taking into account the preference of the qualified individual the agency’s ADA Coordinator shall recommend the accommodation that best serves the needs of the qualified individual and the agency.
4.The agency’s administrator will arrange for its purchase, immediately.
5.The agency shall be responsible for all maintenance of, repairs to, and consumables used in the operations of auxiliary aids, along with any specialized training of personnel in the operation of the auxiliary aids.
6.Disposal of Auxiliary Aids
a.Transfer of the Qualified Individual with an Auxiliary Aid
(1)The auxiliary aid shall be transferred with the qualified individual, as long as the individual remains a state employee or consumer of state services and the auxiliary aid is still required as a reasonable accommodation.
(2)If the auxiliary aid was purchased by the agency and
(AA)The qualified individual’s new position, is not under the control of the agency that purchased the auxiliary aid and
(BB)The auxiliary aid is not required as a reasonable accommodation for another employee/consumer, then
(CC)The purchasing agency shall arrange for the auxiliary aid to be declared “surplus property” in accordance with the surplus property regulations. The title of that auxiliary aid shall be transferred to the new agency. The original agency shall be reimbursed by the new agency for the current value of the auxiliary aid.
b.The qualified individual leaves state employment or is no longer a consumer of state services:
(1)If the auxiliary aid was purchased by an agency, then the agency shall arrange for the auxiliary aid to be declared “surplus property” in accordance with the surplus property regulations and transfer title of that auxiliary aid to the Commission's ADA Equipment Pool.
F.Rejecting a Reasonable Accommodation Request
1.The agency’s ADA Coordinator may reject an individual’s request for a reasonable accommodation for the following reasons:
a.The individual is not an individual with a disability;
b.The individual is able without an accommodation to:
(1)Perform the essential functions of the job or
(2)Participate in and /or benefit from the service or activity in an equally effective manner as individuals without disabilities,
(3)The individual’s request for a reasonable accommodation is primarily for the personal benefit of that individual; or
(4)The individual’s request for a reasonable accommodation would impose an undue hardship on the operations of the agency and there is no alternative reasonable accommodation.
2.The agency’s ADA Coordinator shall, within fifteen (15) business days of receiving all medical documentation requested (see § 2.7.1(C) of this Part above) or following the last meeting to “prepare a Reasonable Accommodation Plan (see § 2.7.1(D)(4) of this Part above):
a.Notify the requesting party of the rejection of their request for a reasonable accommodation, indicating which of the above reasons is the basis of the rejection Reasonable Accommodation Rejection GCD Form; and
b.Forward to the Governor’s Commission on Disabilities a copy of that notification.
G.Non-Supplanting, Impact on Benefits
1.This regulation addresses the State of Rhode Island’s obligation to provide reasonable accommodations and modifications, including auxiliary aids, to beneficiaries with disabilities of its services, programs, and activities, only when the auxiliary aid is needed to ensure accessibility to and usability of programs, services, and or activities.
2.The regulation also addresses the State of Rhode Island’s obligation to provide auxiliary aids, only as a reasonable accommodation to an employee with a disability. This regulation does not supplant nor relieve the obligation of any State agency to provide auxiliary aids (equipment or devices) under any other law or regulation.
2.8.Designation of Responsible Employee and Adoption of Grievance Procedures
A.Designation of responsible employee. A state agency that employs 50 or more persons shall designate at least one employee to coordinate its efforts to comply with and carry out its responsibilities under this part, including any investigation of any complaint communicated to it alleging its noncompliance with this part or alleging any actions that would be prohibited by this part. The state agency shall make available to all interested individuals the name, office address, and telephone number of the employee or employees designated pursuant to this paragraph.
B.Complaint procedure. A state agency that employs 50 or more persons shall adopt and publish grievance procedures providing for prompt and equitable resolution of complaints alleging any action that would be prohibited by this part.
2.9Prohibitions Against Discrimination
A.A state agency shall comply with the provisions of:
1.29 C.F.R. Part 1630 - Regulations to Implement the Equal Employment Provisions of the Americans with Disabilities Act;
2.28 C.F.R. Part 35 Nondiscrimination on the Basis of Disability in State and Local Government;
3.R.I. Const., art. I, § 2;
4.R.I. Gen. Laws Chapter 42-87, Civil Rights of People with Disabilities;
5.R.I. Gen. Laws § 23-6.3-11 Prevention and Suppression of Contagious Diseases – HIV/AIDS - Discrimination prohibited;
6.R.I. Gen. Laws § 37-8-15 Public Property and Works - Access for people with disabilities;
7.R.I. Gen. Laws § 37-8-15.1 Public Property and Works - Accessibility of leased or rented facilities for people with disabilities; and
8.R.I. Gen. Laws § 42-46-13 Open Meetings - Accessibility for persons with disabilities.
A.State agencies and operators of state funded programs or activities shall submit an updated listing of facilities they utilize for open meetings, services, programs, or activities to the Commission on the RI Program Accessibility for Persons with Disabilities Survey Form every fourth (4th) year.
B.The Commission’s Accessibility Committee will review the survey results and develop an action plan to relocate public events from inaccessible facilities or renovate those facilities, within sixty business days of receipt.
2.11Barrier Removal in Existing Facilities
2.11.1State ADA/504 Transition Plan – RI Capital Budget Request for Accessibility
A. In the event that structural changes in facilities are undertaken to comply with a state government entity's obligations to achieve program accessibility, the Commission’s Accessibility Committee shall:
1.Develop and periodically revise the state’s ADA/504 Transition Plan for the removal of environmental and communication barriers; and
2.Submit the RI Capital Budget Request for Accessibility to the Capital Development Committee annually.
B.The RI Department of Transportation, and any other state agency that has responsibility or authority over streets, roads, or walkways, shall submit, for to the Governor’s Commission on Disabilities for inclusion in the State’s ADA/504 Transition Plan. A schedule for providing curb ramps or other sloped areas where pedestrian cross curbs, giving priority to walkways serving entities covered by the Americans with Disabilities Act, including state and local government offices and facilities, transportation, places of public accommodation, and employers, followed by walkways serving other areas.
C.The transition plan shall, at a minimum –
1.Identify physical obstacles in the State of Rhode Island’s facilities, that limit the accessibility of its program or activities to individuals with disabilities;
2.Describe in detail the methods that will be used to make the facilities accessible;
3.Specify the schedule for taking the steps necessary to achieve compliance with this section and, if the time period of the transition plan goes beyond January 26, 1993, identify steps that will be taken during each year of the transition period.
D.The Commission’s Accessibility Committee must review the status of program and employment accessibility in state owned facilities at least once every five (5) years. The Accessibility Committee identifies all state owned facilities that do not conform to the accessibility for people with disabilities standard. Then the Accessibility Committee, with input from the state entities occupying the facilities, identifies all programs and employment opportunities that are inaccessible. Comments from organizations representing individuals with disabilities and consumers (individuals with disabilities) of the services offered in those facilities are solicited. The Committee must use the following criteria to determine the priority of renovations:
1.Group I. Facilities and Systems housing programs providing direct services primarily to people with disabilities and facilities utilized for open meetings and judicial facilities;
2.Group II. Facilities and Systems housing programs that provide a direct service to the General Public; and
3.Group III. Facilities and Systems housing administrative and support services that could, if accessible, expand employment opportunities for workers with disabilities. Within each group, facilities are prioritized using the following criteria:
a.Significance of service (would it be frequented more than another);
b.Incidence of use;
d.Duplication of services elsewhere;
f.Effect on quality of life;
g.Geographic criteria or regionalization; and
h.Service could be rendered by an adjoining office or elsewhere in the facility.
4.The Committee then must consider the potential for operating funds being used to complete renovations (for maintenance or repair of existing access improvements, low cost renovations or equipment with a short life cycle).
5.The Committee must prepare a priority list of renovation projects and submits it to the Governor’s Commission on Disabilities.
6.The Commission then must approve or modifies the list and transmits the list to the Governor for implementation as part of the state’s capitol development plan.
1.The Commission’s Accessibility Committee must annually inform the state agency(ies) occupying the facility(ies) to be renovated of the maximum amount available, the specific facilities or parts of facilities as well as the nature of the renovations approved, the time-period in which the project’s funding is available and the options for project management. The Accessibility Committee annually revises the ADA/504 Transition Plan and RI Capital Budget for Accessibility (in June/July). Projects not on-schedule could be de-obligated and the remaining fund balance transferred to other agencies that demonstrate the ability to complete projects on time.
2.The Accessibility Committee shall issue a ADA Renovation Grant Award letter to the state agency that includes: the specific renovation project number, the award amount (less contingency) by fiscal year(s), the method of payment.
2.12New Construction and Alteration, or Renovation of State and State Funded Facilities
A.To ensure program and employment access and use by individuals with disabilities is incorporated at the earliest stages into the site plans and building plans:
1.The Commission’s staff shall participate in developing the design of all construction, renovation and alteration projects on behalf of or for the use of a state governmental body or public agency.
2.The Commission’s staff shall be consulted:
a.Prior to the initial development of site plans and building plans to ensure that both access to and use of the facilities in the most economic manner possible; and
b.Through any and all revisions of the site plan and building plan to actual completion of the project.
B.A state agency may apply to the Commission’s staff for a waiver of the provisions of this section. The agency must demonstrate that the proposed design, construction, or alternation does not materially affect accessibility to or usability of the facility. The Commission’s staff may only issue a waiver if the alteration work is:
1.Limited solely to electrical, mechanical, or plumbing systems and / or
2.Does not materially affect accessibility to or usability of the facility under accessibility for people with disabilities standards.
3.At the end of twenty (20) business days the waiver is automatically be granted, unless the Commission’s staff has:
a.Requested further information, or
b.Denied the waiver request.
C.General renovations or alternations — Whenever a state agency develops plans for the renovation or alternation of the interior layout of a facility (including employee work areas or customer service areas), or expansion of an existing facility, the state agency shall incorporate the removal of all existing environmental and communication barriers to program and employment opportunities throughout that facility, into the funding and construction plans for the facility.
D.New Construction — Whenever a state agency develops plans for the new construction of a facility; the renovation or alternation of the interior layout of the facility (including employee work areas or customer service areas); or expansion of an existing facility, the state agency shall submit its design to the State Building Commission for review to ensure compliance with the State Building Code, including the accessibility for people with disabilities standard.
E.State Funded Facility Construction, Renovations, or Alterations — The Commission and the state agency funding construction, renovation, or alterations to non-state entity facilities, shall establish cooperative agreements regarding the monitoring of accessibility compliance during the development of site plans and building plans through the actual completion of the project(s).”
2.13.Grievance Procedures Regarding Complaints Alleging Discrimination by a State Agency on the Basis of Disability
A.The complainant must file with the Commission a GCD Disability Rights Complaint and Mediation Request Form for complaints concerning employment discrimination or government services discrimination.
1.The complainant may file a taped audio complaint.
2.Every complaint must include the following information:
a.A description of the alleged discriminatory act(s) and the date(s) of occurrence;
b.The state agency and if possible state employees involved; and
3.Within two (2) business days, the Commission’s Assistant ADA Coordinator will:
a.Determine the deadline for filing a formal complaint/suit and advise the complainant of the federal & state enforcement agencies’ deadline(s) and the time it could take to mediate the complaint; and
b.Forward the complaint to the respondents’ ADA Coordinator identified therein.
2.13.2Respondent Agency’s Investigation and Resolution
A.The respondent’s ADA Coordinator will contact the complainant and attempt to resolve the complaint within fifteen (15) business days of receipt of a complaint; the Respondent’s ADA Coordinator shall report the status of the complaint to the Commission as follows:
1.When the parties have an agreement that resolves the complaint: the Respondent’s ADA Coordinator shall submit to the Commission the GCD Mediation Status Report Form signed by all parties). The parties shall also execute in duplicate a written agreement, which sets forth the specific stipulations of the settlement, and each party shall retain a signed copy of that agreement. However that agreement shall not be provided to the Commission.
2.When the parties have agreed to an extension of time to reach possible agreement on a resolution: the Respondent’s ADA Coordinator shall submit to the Commission the Mediation Status Report, signed by all parties, which sets a new deadline.
3.When the parties cannot resolve the complaint: the Respondent’s ADA Coordinator shall submit to the Commission the GCD Agency Level Mediation Report, and the matter shall be referred to mediation or dismissed by the Commission.
2.13.3Mediation or Dismissal
A.Based on the Agency Level Mediation Report, submitted by the respondent’s ADA Coordinator, the Commission’s Chairperson or Executive Secretary may dismiss the complaint without prejudice, in which case the Commission shall advise the complainant about the available procedures for filing a charge with state and/or federal enforcement agencies.
B.If the Commission does not dismiss the complaint, the Commission shall mail all parties the GCD Mediator Selection Form,
1.Requesting the parties identify which potential mediators listed are unacceptable, and return the form within twenty-five (25) business days; and
2.If one or more of the parties has not returned the Mediator Selection Form within twenty-five (25) business days of it’s mailing, then the Commission shall close the complaint and advise the complainant of the enforcement process.
C.Upon receipt of the Mediator Selection Form from the complainant and respondent, the Commission will appoint two (2) volunteer (trained) mediators: one (1) from a state agency (not involved in the dispute) and one (1) from the disability community, who are acceptable to all parties involved. In the event that there are not two mediators acceptable to all the parties, the Commission will select the two (2) least objectionable mediators.
D.The mediation team shall meet with all parties to assist them to resolve the complaint. The mediation team may meet separately, with each party if necessary or appropriate.
E.The mediation team shall attempt to resolve the complaint within twenty-five (25) business days following their appointment. The parties may extend this twenty-five (25) day deadline by agreeing to additional mediation sessions. The mediation team shall file a Mediation Status Form on their efforts with the Commission, at the end of each mediation session, which the parties shall initial.
F.If the parties resolve the complaint during mediation, they shall execute in duplicate an agreement stipulating the terms of the resolution. The mediation team shall sign the agreement as witnesses. Each party shall retain a signed copy of the agreement. The parties shall not submit a copy of the agreement to the Commission. However, the mediation team shall complete the final Mediation Status Form indicating the type of resolution (initialed by all parties) and submit to the Commission.
G.Mediations conducted under the auspices of the Commission shall conform to the mediation confidentiality provisions of R.I. Gen. Laws § 9-19-44.
|Title||525||Governor’s Commission on Disabilities|
|Part||2||Inclusion in State Government Employment, Programs and Activities (525-RICR-10-00-2)|
|Type of Filing||Periodic Refile|
R.I. Gen. Laws § 42-51-6(1)-(3)
R.I. Gen. Laws § 42-51-6.2
Purpose and Reason:
This regulation is being refiled by the agency pursuant to R.I. Gen. Laws § 42-35-4.1. No changes were made to the text of this rule.