Office for Civil Rights

Schenectady County Department of Social Services (SCDSS)
Resolution Agreement

1. BACKGROUND

   1. The parties to this Voluntary Resolution Agreement (hereinafter referred to as the “Agreement”) are the Schenectady County Department of Social Services (hereinafter referred to as “SCDSS”) located in Schenectady, New York and the Office for Civil Rights of the U.S. Department of Health and Human Services, Region II, New York, New York (hereinafter referred to as “OCR”).

   2. SCDSS acknowledges that, as a public entity providing social services, it is subject to Title II of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq. (hereinafter referred to as the “ADA”), and its implementing regulation at 28 C.F.R. Part 35.

   3. SCDSS further acknowledges that, as a recipient of Federal financial assistance via Title XIX (Medicaid) of the Social Security Act of 1965, 42 U.S.C. § 1396 et seq., it is subject to Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (hereinafter referred to as “Section 504”), and its implementing regulations at 45 C.F.R. Part 84; Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, and its implementing regulations at 45 C.F.R. Part 80; and the Age Discrimination Act of 1975, 42 U.S.C. § 6101 et seq., and its implementing regulations at 45 C.F.R. Part 90.

   4. On January 23, 2008, OCR received a complaint from an individual (hereinafter referred to as the “Complainant”) against SCDSS alleging discrimination on the basis of disability. Specifically, the Complainant alleged that the SCDSS’ office buildings at 487 Nott Street and 104 Erie Boulevard are not accessible because structural barriers and other deficiencies make the programs, services, and activities offered in the buildings inaccessible to individuals with physical disabilities. In addition, the Complainant alleged that SCDSS has not designated an employee to coordinate its efforts to comply with the ADA and Section 504.

   5. In order to resolve this matter expeditiously and without further burden or expense of government investigation or litigation, SCDSS agrees to the terms of this Agreement with OCR, which Agreement addresses the issues in the complaint and reiterates SCDSS’ assurance of its intention to comply with all provisions of the ADA, Section 504 and their respective implementing regulations. SCDSS’ willingness to enter into this Agreement with OCR in no way constitutes an admission of liability.

2. DEFINITIONS

   For purposes of this Agreement the terms listed below shall have the following meaning:

   1. The term “Disability” means, with respect to an individual, a physical or mental impairment that substantially limits one or more of the major life activities of such individual.

   2. The phrase “physical or mental impairment” includes, but is not limited to, any physiological disorder or condition, anatomical loss affecting one or more of the following body systems, such as neurological, musculoskeletal, cardiovascular and special sense organs; and any mental or psychological disorder, such as mental retardation, or organic brain syndrome.

   3. The term “Individual with a Physical Disability” refers to a person who has a physical impairment that substantially limits one or more major life activities.

   4. The term "Structural Barriers" refers to physical impediments to accessibility of SCDSS facilities, including but not limited to, parking facilities, entrances, paths of travel, restrooms, and any other fixed features within SCDSS’ facilities that are regulated by the ADA Accessibility Guidelines (hereinafter referred to as “ADAAG”) which appear at 28 C.F.R. Part 36, Appendix A.

   5. The terms “Applicant” or “Participant” shall be broadly construed to include any individual who is seeking or receiving services from SCDSS.

   6. The term “SCDSS Staff” shall mean all employees of SCDSS including SCDSS supervisory staff, caseworkers, and any individuals, who have or are likely to have direct contact with applicants and/or participants.

   7. The term “Parties” shall mean SCDSS and OCR.

3. GENERAL PROVISIONS

   1. Scope. This Agreement resolves the specific issues addressed in the complaint referenced above, and is not intended to preclude or prejudice any other compliance review or complaint investigation that may be pending before OCR now or in the future. Any other compliance matters arising from subsequent compliance reviews or complaint investigations shall be dealt with and resolved separately. Notwithstanding the foregoing, OCR represents that, to its knowledge, as of the date of this Agreement, there are no other pending OCR investigations or OCR compliance reviews of SCDSS regarding the subject matter of this Agreement other than the one referenced in this Agreement.

   This Agreement does not address or resolve issues involved in any complaint investigation, compliance review, or administrative action under Federal laws by other Federal agencies, including any action or investigation under Title II of the ADA or Section 504 of the Rehabilitation Act.

   2. Non-Waiver. Failure by OCR to enforce this entire Agreement or any provision thereof with respect to any deadline or any other provision shall not be construed as a waiver of OCR’s right to enforce other deadlines or any provision of this Agreement.

   3. Effective Date and Term of the Agreement. This Agreement shall become effective on the date it is signed by all parties to the Agreement (the “Effective Date”) and shall remain in effect for one year from the Effective Date, at which point if OCR determines that SCDSS has substantially complied with this Agreement and the 797 Broadway building (the new SCDSS facility currently under construction) complies with the ADA, Section 504 and ADAAG, OCR’s review and monitoring of this Agreement shall terminate. Notwithstanding the Term of this Agreement, SCDSS acknowledges that it shall comply with the ADA, Section 504 and other applicable nondiscrimination statutes and their implementing regulations for so long as it continues to receive Federal financial assistance.

   4. No Discrimination or Retaliation. The Parties agree that there shall be no discrimination or retaliation of any kind against any person because he or she provided any testimony or otherwise assisted OCR during the investigation of this complaint or because he or she in the future may participate in any manner in any investigation, proceeding or hearing regarding this complaint investigation or regarding compliance with this Agreement.

   5. Records or Data Requests. Throughout the Term of this Agreement, SCDSS agrees to retain all records specified in this Agreement and to provide the written documentation required by this Agreement. SCDSS also agrees to provide such other information as may be requested by OCR to ensure that the provisions of the Agreement have been fulfilled.

   6. Review of Compliance. OCR may, at any time, review SCDSS’ compliance with this Agreement. As part of such review, OCR may require written reports, interview witnesses, examine and copy SCDSS documents, and/or inspect SCDSS buildings or facilities. SCDSS agrees to retain the records required by OCR to assess SCDSS’ compliance with this Agreement throughout the Term of this Agreement. OCR shall maintain the confidentiality of all documents, files and records received from SCDSS and shall not disclose their contents except where necessary in formal enforcement proceedings or where otherwise required by law.

   7. Notice of Non-Compliance. During the duration of this Agreement, if at any time OCR determines that SCDSS has failed to comply with any provision of this Agreement, OCR shall notify SCDSS in writing. The notice shall include a statement of the basis for OCR’s determination and shall allow SCDSS thirty (30) working days either: (a) to explain in writing the reasons for its actions and describe the remedial actions that have been or shall be taken to achieve compliance with this Agreement; or (b) to dispute the accuracy of OCR’s findings. On notice to SCDSS, OCR may shorten the 30-day period if it determines that a delay would result in irreparable injury to the Complainant or to other affected parties. If SCDDS does not respond to the notice, or if, upon review of SCDDS’ response, OCR determines that SCDDS has not complied with the terms of the Agreement, OCR reserves the right to reopen its investigation of SCDDS’ compliance with Section 504 and the ADA. OCR may incorporate into its reopened investigation any relevant evidence of noncompliance with this Agreement, and any relevant evidence gathered by OCR prior to the signing of this Agreement.

   8. Technical Assistance. OCR agrees to provide appropriate technical assistance to SCDSS regarding compliance with this Agreement, as requested and as reasonably necessary.

   9. Modifications; Entire Agreement. This Agreement may only be modified by mutual agreement of the Parties in writing. This Agreement constitutes the entire agreement by the Parties and no other statement, promise or agreement, either written or oral, made by either Party or any agents of a Party, that is not contained in this written Agreement, including any attachments, shall be enforceable.

   10. Compliance with Applicable Laws. Any modification or amendment of this Agreement does not affect SCDSS’ independent responsibilities under any applicable Federal, state or local laws or regulations.

4. GENERAL OBLIGATIONS

   SCDSS shall provide qualified individuals with disabilities with the full and equal enjoyment of the services, privileges, facilities, advantages, and accommodations of SCDSS as required by the ADA and Section 504.

5. POLICIES AND PROCEDURES

   1. Designation of an ADA/Section 504 Coordinator. Within ten (10) days of the Effective Date of this Agreement, SCDSS shall reaffirm its designation of a staff person as the individual to coordinate its efforts to comply with and carry out SCDSS’ADA and Section 504 responsibilities and compliance with this Agreement. The ADA/Section 504 Coordinator and his designees, if any, shall be available to answer questions from applicants and participants and provide appropriate information regarding an individual’s rights and SCDSS obligations under the ADA and Section 504. Within sixty (60) days after the Effective Date of this Agreement, the ADA/Section 504 Coordinator shall conduct an assessment of the population in the SCDSS service area to determine the composition of the population that has a disability. Such assessment may include information obtained by contacting local and/or regional organizations representing the interests of individuals with disabilities. SCDSS shall circulate broadly within all SCDSS offices the name, telephone number, functions, and office address of the ADA/Section 504 Coordinator and his designees.

   2. Develop and Distribute ADA and Section 504 Notice. SCDSS agrees that within forty- five (45) days of the Effective Date of this Agreement, SCDSS will notify applicants, participants, and other interested individuals of their right to file complaints under the ADA and Section 504 alleging discrimination on the basis of disability by SCDSS in the administration of, or for failure to provide equal access to, its programs or activities. SCDSS will publish the ADA/Section 504 Notice, among other places, on its Internet Home Page and will post copies in conspicuous locations in its office buildings. SCDSS will update the ADA/Section 504 Coordinator information contained in the Notice, as necessary, for the Term of the Agreement. SCDSS will distribute the Notice to all of its employees and contractors, and provide a copy of the Notice to any other person upon request, including in alternative formats such as Braille, large print and audiotape. The Notice shall include the following information:

      1. a statement indicating that the SCDSS will not discriminate against qualified individuals with disabilities in its services, programs, or activities;

      2. a statement indicating that SCDSS generally, upon request, will provide appropriate aids and services leading to effective communication for qualified individuals with disabilities so they can participate equally in its programs, services, and activities, including qualified sign language interpreters, documents in Braille, and other ways of making information and communications accessible to individuals who have speech, hearing, or vision impairments;

      3. a statement indicating that SCDSS will make all reasonable modifications to policies and programs to ensure that qualified individuals with disabilities have an opportunity to enjoy its programs, services, and activities; and

      4. a statement indicating that SCDSS will not place a surcharge on a qualified individual with a disability or any group of qualified individuals with disabilities to cover the cost of providing auxiliary aids/services or reasonable modifications of policy, such as retrieving items from locations that are open to the public but are not accessible to persons who use wheelchairs.

   3. Establish and Publish ADA and Section 504 Grievance Procedures. Within thirty (30) days of the Effective Date of this Agreement, SCDSS will establish grievance procedures for resolving complaints of violations arising under the ADA and Section 504 and ensure that they meet the standards set forth respectively in 28 C.F.R. Part 35 and 45 C.F.R. Part 84.

   4. Within forty-five (45) days of the Effective Date of this Agreement, SCDSS shall post copies of the grievance procedures in conspicuous locations throughout its office buildings. SCDSS will distribute the grievance procedures to all of its employees and contractors, and provide a copy of the grievance procedures to any other person upon request, including in alternative formats such as Braille, large print and audiotape. SCDSS will update the contact information contained on the grievance procedures, as necessary, for the Term of the Agreement. The grievance procedures shall include the following information:

      1. a statement indicating that any person who believes that he or she has been denied services or discriminated against on the basis of disability in any aspect of services, benefits or accommodations offered by SCDSS may file a grievance;

      2. a statement indicating that the ADA/Section 504 Coordinator is the contact person who shall receive and respond to complaints of discrimination based on disability and the name and contact information for the ADA/Section 504 Coordinator;

      3. a statement indicating that any person who files a complaint has a right to receive a written response, if requested, to a complaint no later than thirty (30) days after resolution of the complaint;

      4. a statement indicating that all complaints will be resolved as soon as reasonably possible, with a goal of resolving such complaints within thirty (30) days from the date that the complaint was filed;

6. INTERIM ACCESSIBILITY PROCEDURES

   1. Interim Procedures. Within thirty (30) days of the Effective Date of this Agreement, SCDSS will develop and implement interim procedures for the provision of services to individuals with physical disabilities who are unable to access the SCDSS’ 487 Nott Street office. The Interim Procedures shall remain in effect until the new facility currently under construction at 797 Broadway Schenectady, NY, is operational and being used by SCDSS as the primary location for the operation of its Public Assistance and Medicaid programs. However, in the event that the new location should have a condition that renders it inaccessible, as defined by ADA, Section 504 and ADAAG, SCDSS will institute procedures which will allow for equal information and alternative access to the Broadway location which are the same or similar to those identified in the Interim Procedures referenced above. SCDSS will distribute the interim procedures to all of its employees and contractors; and provide a copy of the interim procedures to any other person upon request, including in alternative formats such as Braille, large print and audiotape. The interim procedures must ensure substantially equivalent access to SCDSS’ programs, services, and activities for individuals with and without physical disabilities and shall, among other things, provide for the provision of same-day services for persons with physical disabilities. The interim procedures shall include the following information:

      1. a designated telephone number for individuals with physical disabilities to call and speak with a live person concerning arrangements for the provision of services offered at SCDSS’ 487 Nott Street office;

      2. a sign posted outside of SCDSS’ 487 Nott Street office with the designated telephone number for individuals with physical disabilities to call to speak with a live person about arrangements for the provision of services offered at 487 Nott Street;

      3. documentation in a log of each request made by a qualified individual with a physical disability for accommodations to obtain services offered at SCDSS’ 487 Nott Street office;

      4. instructions to SCDSS staff to use its best efforts to accommodate within 24 hours requests by individuals with physical disabilities for services offered at SCDSS’ 487 Nott Street office, to the extent such requested services are offered to individuals without disabilities within 24 hours and to advise individuals with physical disabilities about the availability of accessible locations that accept and provide assistance with social services applications.

   2. Availability of Alternate Sites. Within thirty (30) days of the Effective Date of this Agreement, SCDSS will advertise to the public by bulk email messaging and fax broadcasting to advocacy organizations that work with the disability community the availability of accessible alternate locations for the services offered at 487 Nott Street and the procedures for obtaining such services. SCDSS will also use its best efforts to identify and contact local media outlets to distribute notice to the public about the aforesaid interim procedures. SCDSS shall also post on signage in and around the 487 Nott Street building the availability of accessible alternate locations for the services offered at 487 Nott Street and the procedures for obtaining such services.

7. STRUCTURAL MODIFICATIONS

   1. In order to ensure that SCDSS’ programs, services, and activities operating at SCDSS’ 104 Erie Boulevard facility are readily accessible to and usable by persons with physical disabilities, SCDSS will take the following actions within thirty (30) days of the Effective Date of this Agreement:

      1. Interior Doors. SCDSS will adjust the pull force on the front entrance doors of the building located at 104 Erie Boulevard to measure no more than 5 pounds in accordance with ADAAG. See § 4.13.11.

      2. Public Restroom.

         1. SIGNAGE - SCDSS will install accessibility signage on the unisex restroom door and position such signage so that the centerline of the sign is 60 inches above the finish floor and there are no protruding objects within 3 inches of the signage. The signage will comply with all applicable provisions of ADAAG. See §§ 4.1.3(16)(a), 4.30.1, 4.30.4, 4.30.5 and 4.30.6.

         2. DOOR HARDWARE - SCDSS will lower the latch and any other operating devices such as locks and handles on the unisex restroom door to a height no higher than 48 inches above the finished floor. See ADAAG § 4.13.9.

         3. PAPER TOWEL DISPENSER - SCDSS will remount the towel dispenser in the unisex restroom so that its highest operable part is within the most appropriate reach range for a person who uses a wheelchair (48 inches for front approach, 54 inches for side approach). The new or repositioned dispenser will comply with all applicable provisions of ADAAG. See §§ 4.1.3(11), 4.2.5, 4.2.6, 4.22.7, and 4.27.3.

         4. MIRROR - SCDSS will remount the existing mirror in the unisex restroom so that the bottom edge of its reflecting surface is no more than 40 inches above the finish floor. The mirror will comply with all applicable provisions of ADAAG. See §§ 4.1.3(11), 4.19.6, 4.22.6, and Fig. 31.

         5. EXPOSED PIPES - SCDSS will insulate the hot water and drain pipes beneath the sink in the unisex restroom to protect against contact in a manner consistent with ADAAG. See §§ 4.1.3(11), 4.19.4, and 4.22.6.

      3. Parking. SCDSS will mount additional signs that say “Van-Accessible” under the current signage in front of the two van accessible parking spaces showing the symbol of accessibility. The signs will comply with applicable provisions of ADAAG. See §§ 4.1.2(5)(b) and 4.6.4.

   2. As of the Effective Date of this Agreement, SCDSS shall continue to take steps to ensure that the design and construction of all new facilities, including the 797 Broadway building currently under construction, complies with the ADA, Section 504 and ADAAG.

   3. SCDSS shall ensure that any alterations made after the Effective Date of this Agreement to any of SCDSS’ existing or new facilities, including the 797 Broadway building, are to the maximum extent feasible readily accessible to and usable by individuals with disabilities in compliance with 28 C.F.R. § 35.151.

8. TRAINING

   1. Training of the ADA/Section 504 Coordinator. Within thirty (30) days of the effective Date of this Agreement, SCDSS shall ensure that the ADA/Section 504 Coordinator and any other SCDSS personnel who are designated to assist him or her receive mandatory training on their responsibilities under this Agreement. Such training shall be sufficient in duration and content to train the ADA/Section 504 Coordinator and such SCDSS personnel with respect to the following:

      1. the requirements of the ADA and Section 504;

      2. the knowledge of accessibility issues and various alternative formats and alternative technologies that enable people with disabilities to communicate, participate, and perform other activities;

      3. SCDSS’ grievance procedures and complaint resolution process described in Section E.3 of this Agreement; and

      4. any other applicable requirements of this Agreement.

   2. Training of SCDSS staff. Within thirty (30) days of the effective Date of this Agreement, SCDSS shall ensure that all of its employees and contractors receive mandatory training on their responsibilities under this Agreement.

9. DOCUMENTATION

   1. ADA/Section 504 Notice, Grievance Procedures, and Interim Accessibility Procedures. Within thirty (30) days of the Effective Date of this Agreement, SCDSS shall provide OCR with a copy of its ADA/Section 504 Notice, grievance procedures and interim accessibility procedures. If OCR has concerns regarding these documents, OCR shall so notify SCDSS.

   2. SCDSS shall maintain records of all grievances/complaints regarding discrimination based on disability, whether oral or written, made to SCDSS and actions taken with respect thereto throughout the Term of this Agreement.

   3. Accommodations Request Log. SCDSS shall keep a log of all requests made by individuals with physical disabilities for accommodations at SCDSS’ 487 Nott Street office throughout the Term of this Agreement. The Log shall include the following information:

      1. the time and date each request is made and the name of the individual making the request;

      2. the time, date and type of accommodation provided; and

      3. if a requested accommodation is not provided, a statement regarding the reason why the requested accommodation was not provided and whether an alternative was provided (if so, identify the alternative).

10. REPORTING

    1. SCDSS agrees to provide OCR with the following:

       1. Within thirty (30) days after the Effective Date of this Agreement, the name, telephone number, functions, and office address of the ADA/Section 504 Coordinator and his designees, if any, as referenced in Section E.1 of this Agreement.

       2. Within thirty (30) days after the Effective Date of this Agreement, copies of the ADA/Section 504 Notice, policies and procedures referenced in Sections E and F of this Agreement. If OCR has concerns regarding these documents, OCR shall so notify SCDSS.

       3. Within sixty (60) days after the Effective Date of this Agreement, a listing of the various local media outlets used to advertise the availability of alternate locations for SCDSS’ 487 Nott Street services, as referenced in Sections E and F, respectively of this Agreement.

       4. Within sixty (60) days of the Effective Date of this Agreement, the actions SCDSS has taken to comply with the structural modifications and alterations referenced in Section G of this Agreement.

       5. Within sixty (60) days after the Effective Date of this Agreement, a letter certifying that the distribution of materials to SCDSS staff required by Sections E and F of this Agreement has occurred. The letter shall specify the date(s) that such distribution occurred, and the staff to whom the materials were distributed.

       6. Within sixty (60) days after the Effective Date of this Agreement, a letter certifying that the training described in Section H of this Agreement has been completed. The letter shall specify the date(s), time(s) and location(s) of the training, the person(s) conducting the training, and the names and titles of those participating in the training.

       7. Six (6) months and twelve (12) months after the Effective Date of this Agreement, letters describing the number and type of grievances/complaints received by SCDSS from individuals with disabilities, which include the status and/or outcome of each grievance/complaint.

11. MISCELLANEOUS PROVISIONS

    1. Within ten (10) days of the Effective Date of this Agreement, SCDSS shall have confirmed with the Complainant that he has been made aware of the identity and contact information for SCDSS’ ADA/Section 504 Coordinator, the procedures for filing a grievance arising under the ADA, and the interim procedures and the availability of accessible alternate locations for obtaining services offered at 487 Nott Street.
    
    

12. SIGNATURES

    The individuals signing this document represent that they are authorized to bind the undersigned entities to this Agreement.

    /s/                               Dennis J. Packard Commissioner Schenectady County Department of Social Services

    November 4, 2008 Date

    /s/                               Michael R. Carter Regional Manager Office for Civil Rights U.S. Department of Health & Human Services

    November 18, 2008 Date

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