SETTLEMENT AGREEMENT BETWEEN
THE UNITED STATES OF AMERICA
ALLEN COUNTY, INDIANA
UNDER THE AMERICANS WITH DISABILITIES ACT
SCOPE OF THE INVESTIGATION
The United States Department of Justice (Department) initiated this matter as a compliance review of the Board of Commissioners of the County of Allen, Indiana (Board) and the Allen County Sheriff (Sheriff) (together sometimes hereinafter referred to as the 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).
As part of its compliance review, the Department reviewed the following facilities, which – because construction or alterations commenced after January 26, 1992 – must comply with the ADA’s new construction or alterations requirements:
Community Corrections Building
Vector Center and Sign Shop
Youth Services - Yoder Boys’ Residence
Youth Services - Kryder Girls’ Residence
Allen County Jail
East Allen Probation
Youth Services Center - Main Office
Fox Island County Park and Nature Preserve
South Highway Barn
War Memorial Coliseum
The Department’s program access review covered those of the County’s programs, services, and activities that operate in the following facilities:
Highway Administration Building
North Highway Barn
Youth Services - Schoolhouse
Youth Services - Optimum Learning Center
Youth Services - Picnic Area
Youth Services - Token General Store
Youth Services - CASA
Byron Health Center
Juvenile Probation - South Fairfield
The Department reviewed the County’s policies and procedures regarding sidewalk maintenance to evaluate whether persons with disabilities have an equal opportunity to utilize these programs. Additionally, the Department reviewed the County’s policies and procedures, if any, regarding programs for victims of domestic violence and abuse.
Finally, the Department reviewed the County Sheriff’s Department’s policies and procedures regarding providing effective communication to persons who are deaf or hard-of-hearing.
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 the Board of Commissioners of the County of Allen, Indiana, and the Sheriff of the County of Allen, Indiana.
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.”
7. On July 8, 1992, Allen County appointed an ADA Coordinator. Since 1992, the Human Resources Director has served as the ADA Coordinator for Allen County.
8. Allen County adopted an ADA Grievance Procedure on August 19, 1992. The ADA Coordinator responds to grievances that have been filed with the County. The County has agreed to post copies of its ADA Grievance Procedure and update contact information as necessary for the term of the of the Settlement Agreement.
9. Allen County prides itself on medical privacy. The County maintains all employees’ medical records separate from personnel files and protects the confidential nature of the records by storing them in a locked cabinet in a locked office pursuant to the Health Insurance Portability and Accountability Act of 1996.
10. Allen County adopted an Anti-Harassment Policy that contains language which prohibits unlawful harassment based on a person’s disability. This policy is contained in the Allen County Employee Handbook distributed to each full-time employee at the time of hire.
11. The County has employment policies intended 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 provide that the County:
A. will not discriminate on the basis of disability in its hiring or employment practices.
B. 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.
D. 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.
12. The Board has informed all other elected officials and department heads of their obligation to provide notification on their public meeting notices describing the procedures for requesting assistance at a meeting. This will enable Allen County officials to better serve the needs of persons with disabilities.
13. Allen County is partnering with several local agencies in SAFENET. This is a voluntary program that allows individuals with memory impairments to register and be listed in a database accessible by Allen County law enforcement. This will assist local law enforcement and healthcare providers in returning an individual who has wandered from safety.
14. Safe at Home. This outreach program mobilizes teams of volunteers to help identify and register individuals whom may be elderly or disabled and may need assistance during time of neighborhood, local, or national emergency. Citizens at risk may be enrolled by completing a free registration form and submitting it to community volunteers. This process may be undertaken by Neighborhood Associations, church groups, or family members. This will allow Fort Wayne and Allen County public servants a record of individuals who may need to be checked on individually during an emergency. This information was vital in creating a list of affected individuals during a recent flood. This database was incorporated into the County Geographic Information System which generated maps and contact information for approximately 80 individuals who may have needed medical care or assistance during the flood. Also, this information would assist law enforcement when called to a home and cannot gain entry. The name of a relative or neighbor who may have access to a key would prevent law enforcement from making a forced entry into the home. This program is administered by RSVP.
15. Allen County sponsored a disability awareness day in conjunction with the ADA Coalition. Elected officials and department heads were invited to spend a day in a wheelchair to gain firsthand experience and perspective on navigating County government offices with a mobility impairment.
16. Allen County Election Board has evaluated several models of ADA-accessible voting machines. The County is replacing existing machines with newer, more accessible machines. The County Election Board has applied for a grant to purchase various hardware and equipment to make polling places more accessible during elections.
17. Allen County has a full time employee that is proficient in sign language. The County provides a sign language interpreter for the weekly Board of Commissioner’s Legislative Session meetings, which is televised.
A. The Sheriff has ensured that each 9-1-1 call station is equipped with a TTY or computer equivalent.
B. The Sheriff has developed procedures for answering 9-1-1- calls that includes training all operators to use a TTY to respond to 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 are received.
C. The Sheriff monitors its incoming 9-1-1 TTY calls to ensure they are answered as quickly and accurately as other calls are received.
19. The County has identified sources of qualified sign language and oral interpreters, real-time transcription services, and vendors and has implemented 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.).
20. On May 25, 2005, the County adopted the attached updated Notice (Attachment A). Within two months of the effective date of this Agreement, the County will 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; 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.
21. 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.
GENERAL EFFECTIVE COMMUNICATION PROVISIONS
22. The County will take steps to ensure that all appropriate employees are trained and practiced in using the Indiana Relay Service to make and receive calls.
LAW ENFORCEMENT AND EFFECTIVE COMMUNICATION
23. Within three months of the effective date of this Agreement, the Sheriff will adapt for its own use and implement the Allen County Sheriff’s Office Policy Statement on Effective Communication with People Who are Deaf or Hard of Hearing (Attachment C) and distribute to all sheriff department officers the Guide for Law Enforcement Officers When in Contact with People Who are Deaf or Hard of Hearing (Attachment D).
24. Within three months of the effective date of this Agreement, the Sheriff will contract 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).
25. Within three months of the effective date of this Agreement, the Sheriff will ensure that each police station or substation and each detention facility housing County inmates 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 Sheriff 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.
26. Within three months of the effective date of this Agreement, the County will implement and report to the Department its written process for soliciting and receiving input from persons with disabilities regarding the accessibility of its sidewalks, including, for example, requests to add curb cuts at particular locations.
27. Within eight months of the effective date of this Agreement, the County will identify and report to the Department all streets, roads, and highways currently under its jurisdiction that have been constructed or altered since January 26, 1992. Paving, repaving, or resurfacing a street, road, or highway is considered an alteration for the purposes of this Agreement. Filling a pothole is not considered an alteration for the purposes of this Agreement. Within three years of the effective date of this Agreement, the County will provide curb ramps or other sloped areas complying with the Standards or UFAS at all intersections of the streets, roads, and highways identified under this paragraph having curbs or other barriers to entry from a street level pedestrian walkway.
28. Beginning no later than three months after the effective date of this Agreement, the County will provide curb ramps or other sloped areas complying with the Standards or UFAS at any intersection having curbs or other barriers to entry from a street level pedestrian walkway, whenever a new street, road, or highway is constructed or altered.
29. Within eight months of the effective date of this Agreement, the County will identify all street level pedestrian walkways currently under its jurisdiction and control that have been constructed or altered since January 26, 1992. Paving, reading, or resurfacing a walkway is considered an alteration for the purposes of this Agreement. Within three years of the effective date of this Agreement, the County will provide curb ramps or other sloped areas complying with the Standards or UFAS at all places where a street level pedestrian walkway identified under this paragraph intersects with a street, road, or highway.
30. Beginning no later than three months after the effective date of this Agreement, the County will provide curb ramps or other sloped areas complying with the Standards or UFAS at all newly constructed or altered pedestrian walkways where they intersect a street, road, or highway.
WEB-BASED SERVICES AND PROGRAMS
31. Within 1 month of the effective date of this Agreement, and on subsequent anniversaries of the effective date of this Agreement, the County will distribute to all persons – employees and contractors – who design, develop, maintain, or otherwise have responsibility for content and format of its website(s) or third party website used by the County (Internet Personnel) the technical assistance document, “Accessibility of State and Local Government Website to People with Disabilities,” which is Attachment H to this Agreement (it is also available at www.ada.gov/websites2.htm).
32. Within three months of the effective date of this Agreement, and throughout the life of the Agreement, the County will do the following:
A. Establish, implement, and post online a policy that its web pages will be accessible and create a process for implementation;
B. Ensure that all new and modified web pages and content are accessible;
C. Develop and implement a plan for making existing web content more accessible;
D. Provide a way for online visitors to request accessible information or services by posting a telephone number or e-mail address on its home page; and
E. Periodically (at least annually) enlist people with disabilities to test its pages for ease of use.
PHYSICAL CHANGES TO FACILITIES
33. The elements or features of the County’s facilities that do not comply with the Standards, including those listed in Attachments I, J, and K, prevent some 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.
34. The County will comply with the cited provisions of the Standards when taking the actions required by this Agreement.
35. Within six 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.
36. Newly Constructed Facilities: In order to ensure that the spaces and elements in County facilities for which construction was commenced after January 26, 1992, are readily accessible to and usable by persons with disabilities, the County will take the actions listed in Attachment I.
37. Altered Facilities: In order to ensure that the spaces and elements in County facilities for which alterations commenced after January 26, 1992, are readily accessible to and usable by persons with disabilities, the County will take the actions listed in Attachment J.
38. 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 K.
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 department heads and elected officials of the County whose employees 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 persons signing for the Board and the Sheriff’s Department represent 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 the Board of Commissioners, County of Allen:
LINDA K. BLOOM, President
MARLA J. IRVING, Vice President
F. NELSON PETERS, Secretary
For the United States:
BRADLEY J. SCHLOZMAN,
Acting Assistant Attorney General for Civil Rights
JOHN L. WODATCH, Chief
JEANINE WORDEN, Deputy Chief
MARY LOU MOBLEY, Senior Counsel
SUNNY E. PIETRAFESA, Attorney
MARK J. MAZZ, AIA, Architect
U.S. Department of Justice
Civil Rights Division
950 Pennsylvania Avenue, N.W.
Disability Rights Section - NYA
Washington, DC 20530
For the Sheriff of Allen County, Indiana:
JAMES A. HERMAN, Sheriff
LISBETH A. BLOSSER, Auditor
September 8, 2009