Notice of Rulemaking Hearing

Department of State For Department of State Use Only Division of Publications 312 Rosa L. Parks, 8th Floor SnodgrassfTN Tower Sequence Number: Nashville, TN 37243 Notice ID(s): Phone: 615.741 .2650 Email: [email protected] File Date: g

Hearings will be conducted in the manner prescribed by the Uniform Administrative Procedures Act, T. C.A. § 4-5-204. For questions and copies of the notice, contact the person listed below.

Agency/B~ard/Co!!)missi~n: f Ten_!l essee D; partment of Childr~n's S~rvices Division: Office of the General Counsel Contact Person: Rachel Rieger UBS Tower, 7'h Floor - -- 315 Deaderick Street ------Address: Nashville, Tennessee 37243 ------Phone: 615-532-8072 -- -- - E;ail: TRachel.Rie _ger_.@tn .g_~

Any Individuals with disabilities who wish to participate in these proceedings (to review these filings) and may require aid to facilitate such participation should contact the following at least 1O days prior to the hearing:

ADA Contact: Donovan Haynes UBS Tower, f2th~Floor 315 Deaderick Street Address: Nashvill~, Tennessee 37243 Phone: 615-741-8422 Email: [email protected]

Hearing Location(s) (for additional locations, copy and paste table)

Address 1: 200 Athens Way, 3rirFloOJ:,_§uite C Mary Ellen Training Roo_m____ -- - Address 2: -~----- ___ C[!y: Nashville, Tennessee ------,____ Zift 37228 Hearingc_D_a_t_e_: -+-0_6_/2_9_/2_0_1_8_ ~_H_e_aring~T_i_m_e_: ~ 9_:_0_0_ ~.:.".!!.·_ [ X CST/CDT _ EST/EDT ------Additional Hearing Information:

------J Revision Type (check all that apply): Amendment X New Repeal

Rule(s) (ALL chapters and rules contained in filing must be listed. If needed, copy and paste additional tables to accommodate more than one chapter. Please enter only ONE Rule Number/Rule Title per row.)

Cha ter Number Chapter Title ,_02_5_0_-_06_-_0_2___ ...__ P_ro_v_id_i__,ng E ual Access to Programs, Services, and Activities for Individuals with

SS-7037 (December 2015) RDA 1693 1 Disabilities under the Americans with Disabilities Act Amendments Act -Rule Number- Rule Title 0250-06-02-.01 Pur ose 0250-06-02-.02 Definitions 0250-06-02-.03 Process for Requests for Reasonable Accommodations 0250-06-02-.04 Prohibited Practices ---- 0250-06-02-.05 Complaint_s______---~

SS-7037 (December 2015) RDA 1693 2 Chapter 0250-06-02 Providing Equal Access to Programs, Services, and Activities for Individuals with Disabilities under the Americans with Disabilities Act Amendments Act

0250-06-02-.01 Purpose 0250-06-02-.02 Definitions 0250-06-02-.03 Process for Requests for Reasonable Accommodations 0250-06-02-.04 Prohibited Practices 0250-06-02·-.05 Complaints

0250-06-02-.01 Purpose

(1) To ensure that no qualified individual shall, by reason of disability, be excluded from participation in or be denied the benefit of services, programs, and activities of the Tennessee Department of Children's Services, or otherwise be subjected to discrimination by the Tennessee Department of Children's Services.

(2) To ensure compliance with the requirements of the Americans with Disabilities Act Amendments Act for qualified individuals with disabilities by providing individualized treatment and a full and equal opportunity to access and participate in services. These rules establish a uniform procedure for the Tennessee Department of Children's Services to consider and respond to requests for reasonable accommodations to qualified individuals receiving and participating in the services, programs, and activities of the Tennessee Department of Children's Services.

Authority: T.C.A. §§ 37-5-105; 37-5-106; 37-5-112; 42 U.S.C.A. §§ 12101 et. seq.; 29 U.S.C.A. § 794

0250-06-02-.02 Definitions

(1) "ADA" means the Americans with Disabilities Act Amendments Act, as set forth in 42 U.S.C.A. §§ 12101 et. seq.

(2) "Commissioner" means the Commissioner of the Department of Children's Services.

(3) "Department" or "DCS" means the Tennessee Department of Children's Services.

(4) "Direct threat" means a significant risk of substantial harm posed by an individual to his or her own safety, or that of other individuals, that cannot be reduced or eliminated through reasonable accommodation. This determination is made based on an individual assessment and objective evidence regarding the risk; whether potential injury will actually occur; and whether reasonable modifications of policies, practices, or procedures could mitigate the risk.

(5) "Fundamental alteration" means a change to the nature of a program necessitated by a requested accommodation that is so extensive that it justifies refusal of the requested accommodation.

(6) "Major life activity" includes, but is not limited to the following:

(a) Caring for oneself;

(b) Performing manual tasks;

(c) Seeing, hearing, walking, eating, sleeping, standing, lifting, bending, speaking, breathing, learning, concentrating, thinking, communicating, working; or

(d) Operation of major bodily functions (e.g., immune system, growth, neurological, respiratory, circulatory, endocrine, and other systems).

(7) "Qualifying disability" means a physical or mental impairment that substantially limits one or more major life activities; a record of such impairment; or being regarded as having such impairment.

SS-7037 (December 2015) RDA 1693 3 (8) "Reasonable accommodation" is not defined under the ADA but shall be determined on a case-by-case basis and shall be based on the needs and abilities of the individual. Individuals with qualifying disabilities may require reasonable accommodations in order to receive the benefits of services, programs, or activities provided by the Department. Reasonable accommodations for individuals with disabilities may include, but are not limited to:

(a) Providing qualified interpreters or other effective methods to communicate with individuals with heari_ng impairments at meetings home visits, or other activit(es; 1

(b) Helping to fill out applications and providing notices and applications in alternative formats (e.g., large print, Braille);

(d) Allowing an individual to bring a friend, relative, neighbor, or advocate to appointments;

(e) Restructuring trainings or curriculums;

(f) Reading notices and other program materials to the individual;

(g) Listening more carefully and taking more time, which may be necessary with individuals who have difficulty communicating because of impairments;

(h) Making reminder calls for appointments;

(i) Making reasonable changes to agency policies or practices; and

U) Other accommodations which are deemed necessary and reasonable to facilitate access to the Department's programs, activities, and services.

(9) "Undue burden" means an imposition of a requested accommodation that is so onerous that it justifies a refusal of the requested accommodation.

Authority: T.C.A. §§ 37-5-105; 37-5-106; 37-5-112; 42 U.S.C.A. §§ 12101 et. seq .; 29 U.S.C.A. § 794

0250-06-02-.03 Process for Requests for Reasonable Accommodations

(1) Absent an undue burden, direct threat, or fundamental alteration, reasonable accommodations shall be provided by the Department at no cost to individuals with qualifying disabilities.

(2) If it is obvious that a reasonable accommodation is needed or if a reasonable accommodation is requested (either orally or in writing), the Department shall engage with the individual through an informal, interactive process to determine what reasonable accommodation shall be provided. If an individual communicates that he or she may have a disability, this shall be treated as a request for a reasonable accommodation.

(3) An individual with a disability may request a reasonable accommodation from any DCS employee or DCS contract provider. It is the responsibility of each DCS employee and DCS contract provider to comply with the ADA and to assist with providing reasonable accommodations to DCS service recipients.

(4) An individual does not have to use the words "reasonable accommodation" or "ADA" or any other specific term when seeking an accommodation.

(5) An individual has the right to refuse an accommodation. In some cases, the refusal to accept a reasonable accommodation may stem from the person's inability to recognize or acknowledge the existence or extent of his or her disability. In such a case, the DCS employee or contract provider may need to seek involvement from a mental health professional if the individual does not seem to understand the consequences of refusing a reasonable accommodation. SS-7037 (December 2015) RDA 1693 4 (6) The Department shall consult with the service recipient and shall give primary consideration to the request of the individual with a disability unless there is another equally effective reasonable accommodation that could be provided.

Authority: T.C.A. §§ 37-5-105; 37-5-106; 37-5-112; 42 U.S.C.A. §§ 12101 et. seq .; 29 U.S.C.A. § 794

0250-06-02-.04 Prohibited practices

Prohibited practices include, but are not limited to, the following:

( 1) Denying or limiting access to any service, program, or activity for a qualified individual with a disability;

(2) Engaging in generalizations, based on stereotypes or preconceived notions, about a person or his or her disability;

(3) Subjecting a qualified individual to separate treatment based upon his or her disability;

(4) Addressing an individual in a manner that denotes inferiority because of disability;

(5) Subjecting an individual to discrimination, harassment, or a hostile environment based on disability;

(6) Failing to provide auxiliary aides or services at no charge to the qualifying individual when accommodations are needed;

(7) Failing to provide reasonable modifications to rules, policies, or practices; or

(8) Failing to remove or make reasonable accommodations for architectural, communication, or transportation barriers that inhibit or prevent participation in programs, services, or activities for a qualified individual with a disability.

Authority: T.C.A. §§ 37-5-105; 37-5-106; 37-5-112; 42 U.S.C.A. §§ 12101 et. seq .; 29 U.S.C.A. § 794

0250-06-02-.05 Complaints

(1) A complaint may be filed :

(a) Through the Department's central office at the contact information included on the Department's website; or

(b) Locally through any of the Department's county offices, regional offices, or youth development centers. If a complaint is filed locally, it shall be forwarded to the Department's central office within two business days of the receipt of complaint by any DCS employee or representative.

(2) Upon receipt, the Department:

(a) Shall notify the complainant of receipt of the complaint;

(b) The notification may be accomplished by the most expedient means available, including mail, facsimile, telephone call documented in writing and confirmed by letter, or electronic mail; and

(c) The notification shall include a request for a time and date an investigator can reach the complainant by telephone or in person to discuss the complaint.

SS-7037 (December 2015) RDA 1693 5 (3) The complaint should ordinarily be in writing. The complaint may be filed on the Department's form, which is titled, Americans with Disabilities Act (ADA) Complaint, and is available on the Department's forms webpage. The complaint may also be filed in a letter stating the elements of the complaint.

(4) The complaint may also be made orally. The DCS employee to whom the complaint is reported shall document the elements of the complaint in writing if the complainant is unable or unwilling to file the complaint in writing. To the extent possible, the complaint shall contain the following information: • • a I

(a) Name, address, and telephone number of the complainant;

(b) Location and name of the agency, facility, or office where the alleged discrimination took place;

(d) The elements of the event(s) that led to the belief that discrimination occurred;

(e) The basis of the complaint;

(f) Names, addresses, and telephone numbers of witnesses who may have knowledge of the event(s); and

(g) The date(s) the alleged discriminatory event(s) occurred.

(5) The Department shall conduct a thorough and neutral investigation of all reported complaints of discrimination based on disability. The investigation shall be completed as soon as possible. The investigator shall review and consider:

(a) All applicable practices and policies related to the complaint;

(b) The circumstances and events which led to the filing of the complaint; and

(6) . The Department shall complete an investigative memorandum that includes any statements and evidence obtained during the investigation.

(7) Upon completion of the investigative memorandum, the Department shall issue determination letters to the complainant and the alleged offender informing them of the outcome of the investigation.

(8) A complainant who is not satisfied with the determination or the remedial action taken regarding accommodation may file an appeal for the Commissioner's review. The appeal must be in writing and received within thirty (30) days of being notified of the determination and/or remedial action.

(9) The Commissioner or the Commissioner's Designee shall review the appeal and determine any necessary action within thirty (30) days of receipt of the appeal. That determination shall be final within DCS.

(10) DCS shall make reasonable efforts to promptly and equitably resolve all complaints and requests for ADA accommodations filed under this policy. All complaints and requests for ADA accommodations received pertaining to this policy shall be kept and maintained on file for a minimum of two (2) years.

Authority: T.C.A. §§ 37-5-105; 37-5-106; 37-5-112; 42 U.S.C.A. §§ 12101 et. seq.; 29 U.S.C.A. § 794

SS-7037 (December 2015) RDA 1693 6 I certify that the information included in this filing is an accurate and complete representation of the intent and scope of rulemaking proposed by the agency.

Date:

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Tre Hargett Secretary of State

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SS-7037 (December 2015) RDA 1693 7