SETTLEMENT AGREEMENT BETWEEN
THE UNITED STATES OF AMERICA
AND
WASHINGTON COUNTY, MAINE
UNDER THE AMERICANS WITH DISABILITIES ACT
DJ 204-34-63
BACKGROUND
SCOPE
OF THE INVESTIGATION
The United
States Department of Justice (Department) initiated this matter as a compliance
review of Washington County, Maine (County) under title II of the Americans
with Disabilities Act of 1990 (ADA), 42 U.S.C. §§ 12131-12134, and the
Department’s implementing regulation, 28 C.F.R. Part 35. Because the County receives financial
assistance from the Department of Justice, the review was also conducted under
the authority of section 504 of the Rehabilitation Act of 1973, 29 U.S.C. §
794, and the Department’s implementing regulation, 28 C.F.R. Part 42, Subpart
G.
The review
was conducted by the Disability Rights Section of the Department’s Civil Rights
Division and focused on the County’s compliance with the following title II
requirements:
C to
conduct a self-evaluation of its services, policies, and practices by July 26,
1992, and make modifications necessary to comply with the Department’s title II
regulation, 28 C.F.R. § 35.105;
C to
notify applicants, participants, beneficiaries, and other interested persons of
their rights and the County’s obligations under title II and the Department’s
regulation, 28 C.F.R. § 35.106;
C to
designate a responsible employee to coordinate its efforts to comply with and
carry out the County’s ADA responsibilities, 28 C.F.R. § 35.107(a);
C to
establish a grievance procedure for resolving complaints of violations of title
II, 28 C.F.R. § 35.107(b);
C to
operate each program, service, or activity so that, when viewed in its
entirety, it is readily accessible to and usable by individuals with
disabilities, 28 C.F.R. § 35.150, by:
C delivery of services, programs, or activities in alternate ways, including, for example, redesign of equipment, reassignment of services, assignment of aides, home visits, or other methods of compliance or, if these methods are not effective in making the programs accessible,
C physical changes to buildings (required to have been made by January 26, 1995), in accordance with the Department’s title II regulation, 28 C.F.R. § 35.151, and the ADA Standards for Accessible Design (Standards), 28 C.F.R. pt. 36, App. A, or the Uniform Federal Accessibility Standards (UFAS), 41 C.F.R. § 101-19.6, App. A.
C to
ensure that facilities for which construction or alteration was begun after
January 26, 1992, are readily accessible to and usable by people with
disabilities, in accordance with 1) the Department’s title II regulation and 2)
the Standards or UFAS, 28 C.F.R. § 35.151;
C to
ensure that communications with applicants, participants, and members of the
public with disabilities are as effective as communications with others,
including furnishing auxiliary aids and services when necessary, 28 C.F.R. §
35.160;
C to
provide direct access via TTY (text telephone) or computer-to-telephone
emergency services, including 9-1-1 services, for persons who use TTY’s and
computer modems, 28 C.F.R. § 35.162;
C to
provide information for interested persons with disabilities concerning the
existence and location of the County’s accessible services, activities, and
facilities, 28 C.F.R. § 35.163(a); and
C to
provide signage at all inaccessible entrances to each of its facilities,
directing users to an accessible entrance or to information about accessible
facilities, 28 C.F.R. § 35.163(b).
The
Department’s program access review covered those of the County’s programs,
services, and activities that operate in the following facilities: Sheriff’s
Office, Patrol Office, Courthouse Complex, County Jail, and District Attorney’s
Office.
The
Department reviewed the County’s policies and procedures regarding notification
of ADA policies, grievance procedures, effective communication, 9-1-1
procedures, and emergency management and disaster prevention to evaluate
whether persons with disabilities have an equal opportunity to utilize these
programs.
Finally, the
Department reviewed the County’s Sheriff’s Department’s
policies and procedures regarding providing effective communication to persons
who are deaf or hard-of-hearing.
JURISDICTION
1. The ADA applies to the County because it is a “public entity” as defined by title II. 42 U.S.C. § 12131(1).
2. The Department is authorized under 28
C.F.R. Part 35, Subpart F, to determine the compliance of the County with title
II of the ADA and the Department's title II implementing regulation, to issue
findings, and, where appropriate, to negotiate and secure voluntary compliance
agreements. Furthermore, the Attorney
General is authorized, under 42 U.S.C. § 12133, to bring a civil action
enforcing title II of the ADA should the Department fail to secure voluntary
compliance pursuant to Subpart F.
3. The Department is authorized under 28
C.F.R. Part 42, Subpart G, to determine the County’s compliance with section
504 of the Rehabilitation Act of 1973, to issue findings, and, where
appropriate, to negotiate and secure voluntary compliance agreements. Furthermore, the Attorney General is
authorized, under 29 U.S.C. § 794 and 28 C.F.R. §§ 42.530 and 42.108-110, to
suspend or terminate financial assistance to the County provided by the Department
of Justice should the Department fail to secure voluntary compliance pursuant
to Subpart G or to bring a civil suit to enforce the rights of the United
States under applicable federal, state, or local law.
4. The parties to this Agreement are the
United States of America and Washington County, Maine.
5. In order to avoid the burdens and
expenses of an investigation and possible litigation, the parties enter into
this Agreement.
6. In consideration of, and consistent
with, the terms of this Agreement, the Attorney General agrees to refrain from
filing a civil suit in this matter regarding all matters contained within this
Agreement, except as provided in the section entitled “Implementation and
Enforcement.”
ACTIONS TAKEN BY COUNTY
7. The County has a designated ADA
Coordinator. Grievances are brought to
the attention of the Coordinator who then works towards a resolution of the
matter.
8. The County has provided a TTY or
computer equivalent at each 9-1-1 call station, and has created and implemented
procedures for answering 9-1-1 calls that include training all call takers to
use a TTY to take 9-1-1 calls, to recognize a “silent” open line as a potential
TTY call and respond by TTY, and to ensure that TTY calls are answered as
quickly as other calls received.
9. The County has conducted a self-evaluation.
REMEDIAL ACTION
NOTIFICATION
10. Within two months of the effective date
of this Agreement, the County will adopt the attached Notice (Attachment A);
distribute it to all agency heads; publish the Notice in a local newspaper of
general circulation serving the County; post the Notice on its Internet Home
Page (when operative); and post copies in conspicuous locations in its public
buildings. It will refresh the posted
copies, and update the contact information contained on the Notice, as necessary,
for the life of this Agreement. Copies
will also be provided to any person upon request.
11. Within three months of the effective date
of this Agreement, and on yearly anniversaries of this Agreement until it
expires, the County will implement and report to the Department its written
procedures for providing information for interested persons with disabilities
concerning the existence and location of the County’s accessible programs,
services, and activities.
GRIEVANCE
PROCEDURE
12. Within three months of the effective date
of this Agreement, the County will adopt the attached ADA Grievance Procedure
(Attachment B), distribute it to all agency heads, and post copies of it in
conspicuous locations in each of its public buildings. It will refresh the posted copies, and
update the contact information contained on it, as necessary, for the life of
the Agreement. Copies will also be
provided to any person upon request.
GENERAL
EFFECTIVE COMMUNICATION PROVISIONS
13. Within three months of the effective date
of this Agreement, the County will identify sources of qualified sign language
and oral interpreters, real-time transcription services, and vendors that can
put documents in Braille, and will implement and report to the Department its
written procedures, with time frames, for fulfilling requests from the public
for sign language or oral interpreters, real-time transcription services, and
documents in alternate formats (Braille, large print, cassette tapes, etc.).
14. The County will take steps to ensure that
all appropriate employees are trained and practiced in using the Maine Relay
Service to make and receive calls.
9-1-1
15. The County will continue to monitor its
incoming 9-1-1 TTY calls to ensure they are answered as quickly and accurately
as other calls received.
16. The County will continue to incorporate
correct TTY call-taking procedures into 9-1-1 call takers’ performance
evaluations and will amend its personnel policies to include written
disciplinary procedures for call takers who fail to perform TTY call-taking
consistent with the training and procedures.
LAW ENFORCEMENT AND EFFECTIVE COMMUNICATION
17. Within three months of the effective date
of this Agreement, the County will adapt for its own use and implement the
Washington County Sheriff’s Department Policy Statement on Effective
Communication with People Who are Deaf or Hard of Hearing [Attachment C] and
distribute to all sheriff’s department officers the Guide for Law Enforcement Officers When in Contact with People Who are
Deaf or Hard of Hearing [Attachment D].
18. Within three months of the effective date
of this Agreement, the County will establish contacts with one or
more local qualified oral/sign language interpreter agencies to ensure that the
interpreting services will be available on a priority basis, twenty-four hours
per day, seven days a week, to its Sheriff’s Department or make other
appropriate arrangements (such as contracting directly with or hiring qualified
interpreters).
19. Within six months of the effective date
of this Agreement, the County will ensure that each Sheriff’s
station or substation and each detention facility is equipped with a working
TTY to enable persons who are deaf, hard of hearing, or who have speech
impairments to make outgoing telephone calls.
Where inmate telephone calls are time-limited, the County will adopt
policies permitting inmates who use TTY’s a longer period of time to make those
calls, due to the slower nature of TTY communications compared with voice
communications.
EMPLOYMENT
20. Within six months of the effective date
of this Agreement, the County will amend its employment policies, as necessary,
to comply with the regulations of the U.S. Equal Employment Opportunity
Commission implementing title I of the Americans with Disabilities Act of 1990,
codified at 29 C.F.R. Part 1630. At
minimum, those policies will provide that the County:
C will not discriminate on the basis of disability in its hiring or employment practices.
C will not ask a job applicant about the existence, nature, or severity of a disability. Applicants may be asked about their ability to perform specific job functions. Medical examinations or inquiries may be made, but only after a conditional offer of employment is made and only if required of all applicants for the position.
C will make
reasonable accommodations for the known physical or mental limitations of a
qualified applicant or employee with a disability upon request unless the
accommodation would cause an undue hardship on the operation of the County’s business.
If an applicant or an employee requests a reasonable accommodation and the
individual's disability and need for the accommodation are not readily apparent
or otherwise known, the County may ask the individual for information necessary
to determine if the individual has a disability-related need for the
accommodation.
C will maintain any employee’s medical records separate from personnel files and keep them confidential.
C will make an individualized assessment of whether a qualified individual with a disability meets selection criteria for employment decisions. To the extent the County’s selection criteria have the effect of disqualifying an individual because of disability, those criteria will be job-related and consistent with business necessity.
VOTING
21. This agreement does not address the
accessibility of voting equipment or voting systems, including polling place
accessibility, or any modifications to polling-related policies and procedures
that may be necessary to ensure access for persons with disabilities.
EMERGENCY
MANAGEMENT PROCEDURES AND POLICIES
22. If the County contracts with another
entity, such as the American Red Cross or another local government, to provide
its emergency preparedness plans and emergency response services, the County
will ensure that the other entity complies with the following provisions on its
behalf.
23. The County will continue to regularly
solicit and incorporate input from persons with a variety of disabilities and
those who serve them regarding all phases of its emergency management plan
(preparation, notification, response, and clean up).
24. The County will continue to ensure that
its community evacuation plans enable those who have mobility impairments,
vision impairments, hearing impairments, cognitive disabilities, mental
illness, or other disabilities to safely self-evacuate or be evacuated by
others. Some communities are
instituting voluntary, confidential registries of persons with disabilities who
may need individualized evacuation assistance or notification. If the County adopts or maintains such a
registry, the County will continue to ensure voluntariness and appropriate
confidentiality controls, and will take steps so that the registry will be kept
updated and to inform persons with disabilities of its availability. Whether or not a registry is used, the
County plan should address accessible transportation needs for persons with
disabilities.
25. The County will continue to ensure that
if its emergency warning systems use sirens or other audible alerts, it will
also provide ways to inform persons with hearing impairments of an impending
disaster. The use of auto-dialed TTY
messages to pre-registered individuals who are deaf or hard of hearing, text
messaging, e-mails, open-captioning on local TV stations and other innovative
uses of technology may be incorporated into such procedures, as well as
lower-tech options such as dispatching qualified sign language interpreters to
assist with emergency TV broadcasts.
26. The County will continue to ensure that
at least one emergency shelter has a back-up generator and a way to keep
medications refrigerated (such as a refrigerator or a cooler with ice). Such shelter(s) will be made available to
persons whose disabilities require access to electricity and refrigeration, for
example, for using life-sustaining medical devices, providing power to
motorized wheelchairs, and preserving certain medications, such as insulin,
that require refrigeration. The written
procedures will include a plan for notifying persons of the location of such
shelter(s).
27. The County will continue to ensure that
persons who use service animals are not separated from their service animals
when sheltering during an emergency, even if pets are normally prohibited in
shelters. The County will not unnecessarily
segregate persons who use service animals from others but may take into account
the potential presence of persons who, for safety or health reasons, should not
be in contact with certain types of animals.
28. Some of the County’s emergency shelters
may be owned or operated by other public entities subject to title II or by
public accommodations subject to title III and, as such, are subject to the
obligation to provide program access or remove barriers to accessibility under
the ADA. This Agreement does not limit
such future enforcement action against the owners or operators of these
facilities by any person or entity, including the Department.
29. The County will continue to ensure
equivalent opportunities for accessible post-emergency temporary housing to
persons with disabilities. The County
will continue to ensure that information it makes available regarding temporary
housing includes information on accessible housing (such as accessible hotel
rooms within the community or in nearby communities) that could be used if
people with disabilities cannot immediately return home after a disaster if,
for instance, necessary accessible features such as ramps or electrical systems
have been compromised.
PHYSICAL
CHANGES TO FACILITIES
30. The elements or features of the County’s
facilities that do not comply with the Standards, including those listed in
Attachments G and H, prevent persons with disabilities from fully and equally
enjoying the County’s services, programs, or activities and constitute
discrimination on the basis of disability within the meaning of 42 U.S.C. §
12132 and 28 C.F.R. §§ 35.149 and 35.150.
31. The County will comply with the cited
provisions of the Standards when taking the actions required by this Agreement.
32. Within three months of the effective date
of this Agreement, the County will install signage as necessary to comply with
28 C.F.R. § 35.163(b), after having surveyed all facilities that are the
subject of this Agreement for the purpose of identifying those that have
multiple entrances not all of which are accessible.
33. Program Access in County Existing
Facilities: In order to ensure that
each of the County’s programs, services, and activities operating at a facility
that is the subject of this Agreement, when viewed in its entirety, is readily
accessible to and usable by persons with mobility impairments, the County will
take the actions listed in Attachment G within three years of the effective
date of this Agreement, unless otherwise indicated.
PROGRAM MODIFICATIONS
34. Access to County Programs Housed in
Others’ Facilities: In order to
ensure that the County’s programs, services, and activities that are the
subject of this Agreement and that are operated by the County at facilities
owned or controlled by other entities, when viewed in its entirety, are readily
accessible to and usable by persons with mobility impairments, the County will
take the actions listed in Attachment H within two years of the effective date
of this Agreement, unless otherwise indicated.
PROGRAMS FOR VICTIMS OF DOMESTIC ABUSE
35. If the County owns or operates any
Domestic Violence Programs, within nine months of the effective date of this
Agreement, it will do the following:
A. Whatever written information is provided
regarding its Domestic Violence Programs will also be provided in alternate
formats, including Braille, large print, audio recording, and electronic
formats, upon request.
B. Enter into contracts or make other
arrangements with qualified sign language and oral interpreters to ensure their
availability when required for effective communication with persons who are
deaf or hard of hearing. The type of
aid that will be required for effective communication will depend on the
individual’s usual method of communication, and the nature, importance, and
duration of the communication at issue.
In many circumstances, oral communication supplemented by gestures and
visual aids, an exchange of written notes, use of a computer or typewriter, or
use of an assistive listening device may be effective. In other circumstances, qualified sign
language or oral interpreters are needed to communicate effectively with
persons who are deaf or hard of hearing.
The more lengthy, complex, and important the communication, the more
likely it is that a qualified interpreter will be required for effective
communication with a person whose primary means of communication is sign
language or speech reading.
C. If the County’s Domestic Violence
Programs operate a hotline to take telephone calls of an emergency nature, the
County shall ensure that it provides equivalent service for persons who use
TTY’s, including providing direct-connection service for TTY users with hotline
operators, without requiring TTY users to call through a third party operator,
such as through the state or local Telecommunication Relay Services. The County will obtain the necessary
equipment, establish the written procedures, and provide the training necessary
to ensure effective communication by Hotline staff with direct-connection
callers using TTY’s, as well as the training necessary to respond to callers
who use the Telecommunication Relay Services.
D. Survey facilities used as shelters or
designated as potential shelters – or for counseling, job training, education,
clothing or household provisioning, or other aspects of Domestic Violence
Programs – to ensure that adequate arrangements are available for potential
clients and family members with disabilities, including adults and children who
have mobility impairments, who are blind or have low vision, and who are deaf
or hard of hearing. Within one year of
the effective date of this Agreement, modify each such facility to remove the
barriers or, alternatively, procure another, fully accessible facility to ensure
that potential clients and family members with disabilities have integrated
options when participating in a sheltering or other Domestic Violence
program. Nothing in this Agreement
requires any modifications that would compromise the confidentiality of a
shelter or counseling center. Until there
is a sufficient stock of accessible housing and other facilities within the
sheltering program, the County will implement written procedures ensuring that
it has identified temporary accessible housing (such as accessible hotel rooms
within the community or in nearby communities) and other facilities that could
be used if people with disabilities need sheltering or inservice access to a
Domestic Violence Program. The cost to
potential clients of being housed or otherwise served in alternate accessible
facilities shall not exceed any costs normally attributed to clients of the
County’s Domestic Violence Programs.
E. Implement written procedures and
modify, as appropriate, eligibility criteria, to ensure that no person with a
disability is turned away from a shelter or otherwise denied the opportunity to
benefit from the services of the County’s Domestic Violence Programs on the
basis of disability.
F. Implement written procedures to ensure
that persons with disabilities who use service animals are not denied or
discouraged from participating in Domestic Violence Programs, are able to be
housed and served in an integrated environment, and are not separated from
their service animals while participating in the County’s Domestic Violence
Programs even if pets are normally not permitted in the facilities where such
programs are conducted. The procedures
will not unnecessarily segregate persons who use service animals from others
but may take into account the potential presence of persons who, for safety or
health reasons, should not be in contact with certain types of animals. If the County’s Domestic Violence Programs
require clients to make any payments for shelter or other services they
provide, clients shall not be required to make additional payments because they
or their family members use service animals.
G. Implement written procedures to ensure
that reasonable modifications are made to the County’s Domestic Violence
Programs when necessary for a client or family member with a disability to
participate in such Programs, unless doing so would fundamentally alter the
nature of the program.
H. Implement written policies to ensure
that despite any “drug-free” policy of the County’s Domestic Violence Programs,
persons with disabilities who use medication prescribed for their use are able
to continue using such medication while participating in such Programs or being
housed in a shelter.
36. If the County contracts with another
entity to provide or operate programs that provide shelter, counseling, or
other assistance or supportive services to victims of domestic violence or
abuse and their families (hereafter referred to as “Domestic Violence
Programs”), it will ensure that the
other entity complies with the preceding provisions on its behalf. If that entity will not comply with the
following provisions, the County will nonetheless take all necessary steps to
ensure that its program is accessible to persons with disabilities.
37. Some of the of the County’s shelters may
be owned or operated by other public entities subject to title II or by public
accommodations subject to title III and, as such, are subject to the obligation
to provide program access or remove barriers to accessibility under the
ADA. This Agreement does not limit such
future enforcement action against the owners or operators of these facilities
by any person or entity, including the Department.
38. This Agreement shall not be construed to
require the County to divulge confidential information relating to the location
or existence of any Domestic Violence Programs, beyond what is otherwise
required by applicable law or what is necessary for the Department to
effectively enforce this Agreement.
MISCELLANEOUS
PROVISIONS
39. Except as otherwise specified in this
Agreement, at yearly anniversaries of the effective date of this Agreement
until it expires, the County will submit written reports to the Department
summarizing the actions the County has taken pursuant to this Agreement. Reports will include detailed photographs
showing measurements, architectural plans, work orders, notices published in
the newspaper, copies of adopted policies, and proof of efforts to secure
funding/assistance for structural renovations or equipment.
40. Throughout the life of this Agreement,
consistent with 28 C.F.R. § 35.133(a), the County will maintain the
accessibility of its programs, activities, services, facilities, and equipment,
and will take whatever actions are necessary (such as routine testing of
accessibility equipment and routine accessibility audits of its programs and
facilities) to do so. This provision
does not prohibit isolated or temporary interruptions in service or access due
to maintenance or repairs. 28 C.F.R. §
35.133(b).
41. Within six months of the effective date
of this Agreement, the County will develop or procure a two-hour training
program on the requirements of the ADA and appropriate ways of serving persons
with disabilities. The County will use
the ADA technical assistance materials developed by the Department and will
consult with interested persons, including individuals with disabilities, in
developing or procuring the ADA training program.
42. Within one year of the effective date of
this Agreement, the County will deliver its training program to all County employees who have direct contact with
members of the public. At the end of
that period, the County will submit a copy of its training curriculum and
materials to the Department, along with a list of employees trained and the
name, title, and address of the trainer.
IMPLEMENTATION AND ENFORCEMENT
43. If at any time the County desires to
modify any portion of this Agreement because of changed conditions making
performance impossible or impractical or for any other reason, it will promptly
notify the Department in writing, setting forth the facts and circumstances
thought to justify modification and the substance of the proposed
modification. Until there is written
Agreement by the Department to the proposed modification, the proposed
modification will not take effect.
These actions must receive the prior written approval of the Department,
which approval will not be unreasonably withheld or delayed.
44. The Department may review compliance with
this Agreement at any time. If the
Department believes that the County has failed to comply in a timely manner
with any requirement of this Agreement without obtaining sufficient advance
written agreement with the Department for a modification of the relevant terms,
the Department will so notify the County in writing and it will attempt to
resolve the issue or issues in good faith.
If the Department is unable to reach a satisfactory resolution of the
issue or issues raised within 30 days of the date it provides notice to the
County, it may institute a civil action in federal district court to enforce
the terms of this Agreement, or it may initiate appropriate steps to enforce
title II and section 504 of the Rehabilitation Act.
45. For purposes of the immediately preceding
paragraph, it is a violation of this Agreement for the County to fail to comply
in a timely manner with any of its requirements without obtaining sufficient
advance written agreement with the Department for an extension of the relevant
time frame imposed by the Agreement.
46. Failure by the Department to enforce this
entire Agreement or any provision thereof with regard to any deadline or any
other provision herein will not be construed as a waiver of the Department's
right to enforce other deadlines and provisions of this Agreement.
47. This Agreement is a public document. A copy of this document or any information
contained in it will be made available to any person by the County or the
Department on request.
48. This Agreement constitutes the entire
agreement between the parties on the matters raised herein, and no other
statement, promise, or agreement, either written or oral, made by either party
or agents of either party, that is not contained in this written Agreement
(including its Attachments, which are hereby incorporated by reference), will
be enforceable. This Agreement does not
purport to remedy any other potential violations of the ADA or any other
federal law. This Agreement does not
affect the County’s continuing responsibility to comply with all aspects of the
ADA and section 504 of the Rehabilitation Act.
49. This Agreement will remain in effect for four years.
50. The person signing for the County
represents that he or she is authorized to bind the County to this Agreement.
51. The effective date of this Agreement is
the date of the last signature below.
For Washington County, Maine: By:
____________________________ KEVIN
L. SHOREY, County Commissioner and Chairperson JOHN
B. CROWLEY, SR, County Commissioner CHRISTOPHER
M. GARDNER, County Commissioner Date: ___________________________ |
For the United States: BRADLEY J. SCHLOZMAN, Acting Assistant Attorney General for
Civil Rights By:_____________________________ JOHN L. WODATCH, Chief JEANINE WORDEN, Deputy Chief MARY LOU MOBLEY, Senior Counsel JOSH MENDELSOHN, Supervisory Attorney MICHELE ANTONIO MALLOZZI, Architect U.S. Department of Justice Civil Rights Division 950 Pennsylvania Avenue, N.W. Disability Rights Section - NYA Washington, DC 20530 Date: ______________________________ |