SCOPE OF THE INVESTIGATION
The United States Department of Justice (Department) initiated this matter as a compliance review of Metro 911 of Kanawha County (Metro 911) located in Kanawha County, West Virginia, 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.
The review was conducted by the Disability Rights Section of the Department’s Civil Rights Division and focused on Metro 911’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 the 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 Metro 911’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 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;
1. The ADA applies to Metro 911 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 Metro 911 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 Metro 911’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 Metro 911 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 Metro 911 of Kanawha County.
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 THE METRO 911
7. To ensure that callers who use TTY’s have direct, effective communications with its 9-1-1 call takers, Metro 911 recently procured new emergency communications equipment that provides for integrated handling of 9-1-1 calls placed by people who use TTY’s at each call taker’s computer console. This equipment identifies callers who are using TTY’s and allows call takers to answer and respond to TTY calls as easily as they answer and respond to other callers.
8. In response to the issues addressed in this Agreement, Metro 911 began working with the Department even before this Agreement was signed to improve access for people with disabilities who communicate using TTY’s.
9. Within two months of the effective date of this Agreement, Metro 911 will adopt the attached Notice (Attachment A); publish the Notice in a local newspaper of general circulation serving Kanawha County and the City of Charleston; 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.
10. Within three months of the effective date of this Agreement, Metro 911 will appoint or hire one or more ADA Coordinator(s). The ADA Coordinator(s) will coordinate Metro 911’s effort to comply with and carry out its responsibilities under the ADA, including any investigation of complaint communicated to it alleging its noncompliance with title II or alleging any actions that would be prohibited under title II. Metro 911 will make available to all interested individuals the name(s), office address(es), and telephone number(s) of the ADA Coordinator(s).
11. Within three months of the effective date of this Agreement, Metro 911 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
12. Within three months of the effective date of this Agreement, Metro 911 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.).
13. Within three months of the effective date of this Agreement, Metro 911 will develop 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.
14. Metro 911 will monitor its incoming 9-1-1 TTY calls to ensure they are answered as quickly and accurately as other calls received.
15. Metro 911 will 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. Metro 911 will implement and report to the Department its evaluation and procedures within three months of the effective date of this Agreement.
16. Within three months of the effective date of this Agreement, Metro 911 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 Metro 911:
∙ will not discriminate on the basis of disability in its hiring or employment practices.
∙ 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.
∙ 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 Metro 911’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, Metro 911 may ask the individual for information necessary to determine if the individual has a disability-related need for the accommodation.
∙ will maintain any employee’s medical records separate from personnel files and keep them confidential.
∙ will make an individualized assessment of whether a qualified individual with a disability meets selection criteria for employment decisions. To the extent Metro 911’s selection criteria have the effect of disqualifying an individual because of disability, those criteria will be job-related and consistent with business necessity.
WEB-BASED SERVICES AND PROGRAMS
17. Within 1 month of the effective date of this Agreement, and on subsequent anniversaries of the effective date of this Agreement, Metro 911 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 Metro 911 (Internet Personnel) the technical assistance document, “Accessibility of State and Local Government Websites to People with Disabilities,” which is Attachment H to this Agreement (it is also available at www.ada.gov/websites2.htm).
18. Within three months of the effective date of this Agreement, and throughout the life of the Agreement, Metro 911 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.
19. Except as otherwise specified in this Agreement, at yearly anniversaries of the effective date of this Agreement until it expires, Metro 911 will submit written reports to the Department summarizing the actions Metro 911 has taken pursuant to this Agreement. Reports will include work orders, notices published in the newspaper, copies of adopted policies, and proof of efforts to secure funding/assistance for structural renovations or equipment.
20. Throughout the life of this Agreement, consistent with 28 C.F.R. § 35.133(a), Metro 911 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).
21. Within six months of the effective date of this Agreement, Metro 911 will develop or procure a two-hour training program on the requirements of the ADA and appropriate ways of serving persons with disabilities. Metro 911 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.
22. Within one year of the effective date of this Agreement, Metro 911 will deliver its training program to all Metro 911 employees who have direct contact with members of the public. At the end of that period, Metro 911 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
23. If at any time Metro 911 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.
24. The Department may review compliance with this Agreement at any time. If the Department believes that Metro 911 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 Metro 911 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 Metro 911, 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.
25. For purposes of the immediately preceding paragraph, it is a violation of this Agreement for Metro 911 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.
26. 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.
27. 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 Metro 911 or the Department on request.
28. 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 Metro 911’s continuing responsibility to comply with all aspects of the ADA.
29. This Agreement will remain in effect for three years.
30. The person signing for Metro 911 represents that he or she is authorized to bind Metro 911 to this Agreement.
31. The effective date of this Agreement is the date of the last signature below.
For Metro 911 of Kanawha County:
CAROLYN KARR CHARNOCK,
For the United States:
WAN J. KIM,
Assistant Attorney General for Civil Rights
JOHN L. WODATCH, Chief
JEANINE WORDEN, Deputy Chief
DOV LUTZKER, Attorney
U.S. Department of Justice
Civil Rights Division
950 Pennsylvania Avenue, N.W.
Disability Rights Section - NYA
Washington, DC 20530
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March 12, 2007