SETTLEMENT AGREEMENT BETWEEN

THE UNITED STATES OF AMERICA

AND

BARNSTABLE COUNTY, MASSACHUSETTS

UNDER THE AMERICANS WITH DISABILITIES ACT

DJ 204-36-187





BACKGROUND

SCOPE OF THE INVESTIGATION

The United States Department of Justice (Department) initiated this matter as a compliance review of Barnstable County, Massachusetts 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 Barnstable County, Massachusetts 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 Barnstable County’s compliance with the following title II requirements:

  • 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;

  • to notify applicants, participants, beneficiaries, and other interested persons of their rights and Barnstable County’s obligations under title II and the Department’s regulation, 28 C.F.R. § 35.106;

  • to designate a responsible employee to coordinate its efforts to comply with and carry out Barnstable County’s ADA responsibilities, 28 C.F.R. § 35.107(a);

  • to establish a grievance procedure for resolving complaints of violations of title II, 28 C.F.R. § 35.107(b);

  • 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:

    • 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,

    • 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.

  • 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;

  • 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;

  • 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;

  • to provide information for interested persons with disabilities concerning the existence and location of Barnstable County’s accessible services, activities, and facilities, 28 C.F.R. § 35.163(a); and

  • 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 Barnstable County’s programs, services, and activities that operate in the following facilities: Superior Court, Deeds and Probate, First District Court, Orleans District Court, Children’s Cove, Cape Cod Cooperative Extension, Fire Academy and the County’s 911 Center.

The Department reviewed Barnstable County’s policies and procedures regarding emergency management and disaster prevention, and sidewalk maintenance to evaluate whether persons with disabilities have an equal opportunity to utilize these programs.

Finally, the Department reviewed Barnstable 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 Barnstable 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 Barnstable 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 Barnstable 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 Barnstable 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 Barnstable County, Massachusetts.

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 BARNSTABLE COUNTY

7.     Barnstable County has a designated ADA Coordinator and grievances are brought to the attention of the Coordinator who then works toward a resolution of the matter.

8.     A Barnstable County government-wide evaluation team worked with a contractor to develop and publish a Barnstable County Americans with Disabilities Act Implementation Plan, dated July 1994. Barnstable County consulted with Cape Organizations for the Rights of the Disabled (CORD) during this process and has been working from the self-assessment and Implementation Plan since 1994.

9.     Barnstable County has a 9-1-1 call station equipped with TTY’s and computer equivalent. Barnstable County has developed procedures for answering 9-1-1 calls that include training all call takers to use a TTY to take 9-1-1 calls, and to recognize a “silent” open line as a potential TTY call to be responded to by TTY. The 9-1-1 call station also ensures that TTY calls are answered as quickly and accurately as other calls received. It also performs quarterly TTY Quality Assurance reports.

REMEDIAL ACTION

NOTIFICATION

10.     Within two months of the effective date of this Agreement, Barnstable 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 Barnstable 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.

11.     Within three months of the effective date of this Agreement, and on yearly anniversaries of this Agreement until it expires, Barnstable 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 Barnstable County’s accessible programs, services, and activities.

GRIEVANCE PROCEDURE

12.     Within three months of the effective date of this Agreement, Barnstable 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, Barnstable 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.     Barnstable County will take steps to ensure that all appropriate employees are trained and practiced in using the Massachusetts Relay Service to make and receive calls.

LAW ENFORCEMENT AND EFFECTIVE COMMUNICATION

15.     Within three months of the effective date of this Agreement, Barnstable County will adapt for its own use and implement the Barnstable County sheriff’s office’s Policy Statement on Effective Communication with People Who are Deaf or Hard of Hearing [Attachment C] and distribute to all sheriff’s officers the Guide for Law Enforcement Officers When in Contact with People Who are Deaf or Hard of Hearing [Attachment D].

16.     Within three months of the effective date of this Agreement, Barnstable County 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 office or make other appropriate arrangements (such as contracting directly with or hiring qualified interpreters).

17.     Within three months of the effective date of this Agreement, Barnstable 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, Barnstable 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.

WEB-BASED SERVICES AND PROGRAMS

18.     Within 1 month of the effective date of this Agreement, and on subsequent anniversaries of the effective date of this Agreement, Barnstable 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 websites used by the County (Internet Personnel) the technical assistance document, “Accessibility of State and Local Government Websites to People with Disabilities,” which is Attachment F to this Agreement (it is also available at www.ada.gov/websites2.htm).

19.     Within three months of the effective date of this Agreement, and throughout the life of the Agreement, Barnstable County will do the following:

  1. Establish, implement, and post online a policy that its web pages will be accessible and create a process for implementation;

  2. Ensure that all new and modified web pages and content are accessible;

  3. Develop and implement a plan for making existing web content more accessible;

  4. 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

  5. Periodically (at least annually) enlist people with disabilities to test its pages for ease of use.

PHYSICAL CHANGES TO FACILITIES

20.     The elements or features of Barnstable County’s facilities that do not comply with the Standards, including those listed in Attachments K, prevent persons with disabilities from fully and equally enjoying Barnstable 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.

21.     Barnstable County will comply with the cited provisions of the Standards when taking the actions required by this Agreement.

22.     Within three months of the effective date of this Agreement, Barnstable 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.

23.     Program Access in County Existing Facilities: In order to ensure that each of Barnstable 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, Barnstable County will take the actions listed in Attachment K.

PROGRAM MODIFICATIONS

24.     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 L.

PROGRAMS FOR VICTIMS OF DOMESTIC ABUSE

Reserved.

SERVICE ANIMALS

Reserved.

MISCELLANEOUS PROVISIONS

25.     Except as otherwise specified in this Agreement, at yearly anniversaries of the effective date of this Agreement until it expires, Barnstable County will submit written reports to the Department summarizing the actions Barnstable 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.

26.     Throughout the life of this Agreement, consistent with 28 C.F.R. § 35.133(a), Barnstable 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).

27.     Within six months of the effective date of this Agreement, Barnstable County will develop or procure a two-hour training program on the requirements of the ADA and appropriate ways of serving persons with disabilities. Barnstable 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.

28.     Within one year of the effective date of this Agreement, Barnstable County will deliver its training program to all Barnstable County employees who have direct contact with members of the public. At the end of that period, Barnstable 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

29.     If at any time Barnstable 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.

30.     The Department may review compliance with this Agreement at any time. If the Department believes that Barnstable 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 Barnstable 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 Barnstable 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.

31.     For purposes of the immediately preceding paragraph, it is a violation of this Agreement for Barnstable 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.

32.     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.

33.     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 Barnstable County or the Department on request.

34.     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 Barnstable County’s continuing responsibility to comply with all aspects of the ADA and section 504 of the Rehabilitation Act.

35.     This Agreement will remain in effect for three years.

36.     The person signing for Barnstable County represents that he or she is authorized to bind Barnstable County to this Agreement.

37.     The effective date of this Agreement is the date of the last signature below.



For the Barnstable County: For the United States:








By: _____________________________
WILLIAM DOHERTY, Chair
MARY J. LECLAIR, Vice-Chair
LANCE LAMBROS, Commissioner















Bradley J. Schlozman,
Acting Assistant Attorney General
Civil Rights Division



By: _____________________________
JOHN L. WODATCH, Chief
JEANINE WORDEN, Deputy Chief
MARY LOU MOBLEY, Senior Counsel
JOSH MENDELSOHN, Supervisory Attorney
TONI POCHUCHA, Investigator
ZULMA SOTO, Investigator
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
______9/25/05_________
Date





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